Journal of Law and Policy
Volume 13 | Issue 1
Article 15
2005
State Responses to the Specter of Racial
Discrimination in Capital Proceedings: The
Kentucky Racial Justice Act and the New Jersey
Supreme Court's Proportionality Review Project
Alex Lesman
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Recommended Citation
Alex Lesman, State Responses to the Specter of Racial Discrimination in Capital Proceedings: The Kentucky Racial Justice Act and the New
Jersey Supreme Court's Proportionality Review Project, 13 J. L. & Pol'y (2005).
Available at: http://brooklynworks.brooklaw.edu/jlp/vol13/iss1/15
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STATE RESPONSES TO THE SPECTER OF
RACIAL DISCRIMINATION IN CAPITAL
PROCEEDINGS: THE KENTUCKY RACIAL
JUSTICE ACT AND THE NEW JERSEY
SUPREME COURT’S PROPORTIONALITY
REVIEW PROJECT
Alex Lesman*
INTRODUCTION
Since April 22, 1987, when the United States Supreme Court
handed down McCleskey v. Kemp,1 the death penalty in America
has operated in a twilight of simultaneous acknowledgement and
denial of racial discrimination in the ultimate punishment. In
McCleskey, the Supreme Court admitted the existence of racial
disparity in capital sentencing,2 but declined to recognize it as a
constitutional violation.3 In the three decades since the Court
* Brooklyn Law School, Class of 2005; M.A., University of Virginia, 1996;
B.A., Amherst College, 1995. The author thanks Laurel Edmundson for her
steadfast support, George Kendall, Ursula Bentele, Karl Keys, Pat Delahanty,
Ed Monahan, Gerald Neal, Rob Sexton, Phil Patton, Joe Bouvier, David
Harshaw, and David Barron for sharing their expertise, and the staff members of
the Journal of Law and Policy for their editorial help.
1
481 U.S. 279 (1987).
2
This note distinguishes between disparity, a statistical phenomenon, and
discrimination, a human behavioral phenomenon. Furthermore, this note
assumes that disparity correlated with a victim’s race and disparity correlated
with a defendant’s race equally constitute racial disparity.
3
McCleskey, 481 U.S. at 312 (admitting that “[t]he Baldus study indicates
a discrepancy that appears to correlate with race” but asserting that “[a]pparent
disparities in sentencing are an inevitable part of our criminal justice system”).
But this is not to say that the Court admitted to any complicity in racial
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decided the 1972 landmark case Furman v. Georgia,4 which struck
down then-existing state death penalty statutes as
unconstitutionally arbitrary and capricious, social scientists and
legal scholars have produced a significant body of research
showing death sentences to be correlated with the race of both
murder victims (the highest rates being found in white-victim
cases) and murder defendants (the highest rates being found in
black-defendant cases).5 Public opinion polls suggest that a
considerable portion of the public accepts race-of-defendant
disparity in capital proceedings as a fact.6
Nevertheless, almost every court—federal and state—to hear a
statistically-based claim of racial discrimination in capital
proceedings since 1987 has rejected it under cover of McCleskey.7
discrimination. See id. at 309-10 (cataloguing the Court’s “unceasing efforts to
eradicate racial prejudice from our criminal justice system”) (internal quotation
marks omitted).
4
408 U.S. 238 (1972). See discussion infra Part I.A.
5
See, e.g., U.S. GENERAL ACCOUNTING OFFICE, DEATH PENALTY
SENTENCING: RESEARCH INDICATES PATTERN OF RACIAL DISPARITIES (1990)
(analyzing twenty-eight studies involving cases from 1972 to 1988), reprinted in
136 CONG. REC. S6873, 6889 (1990); David C. Baldus et al., Racial
Discrimination and the Death Penalty in the Post-Furman Era: An Empirical
and Legal Overview, with Recent Findings from Philadelphia, 83 CORNELL L.
REV. 1638, 1738 (1998) [hereinafter Overview] (noting that “the problem of
arbitrariness and discrimination in the administration of the death penalty is a
matter of continuing concern and is not confined to southern jurisdictions”).
6
In a March 2001 Gallup poll, 50 percent of respondents agreed that a
black person is more likely than a white person to receive the death penalty for
the same crime. Gallup Poll Release 3/2/01, available at http://deathpenaltyinfo.
org/article.php?scid=23&did=210#pew20030724. A 1991 Gallup poll found that
73 percent of blacks and 41 percent of whites agreed that blacks are more likely
to receive the death penalty than whites in similar cases. See WENDY KAMINER,
IT’S ALL THE RAGE 103 (1995).
7
See, e.g., Bell v. Ozmint, 332 F.3d 229, 237 (4th Cir. 2003); U.S. v.
Webster, 162 F.3d 308, 334 (5th Cir. 1998); Griffin v. Dugger, 874 F.2d 1397,
1401 (11th Cir. 1989); State v. Stevens, 78 S.W.3d 817, 852 (Tenn. 2002);
Brooks v. State, 990 S.W.2d 278, 289 (Tx. Crim. App. 1999); Watkins v. Com.,
385 S.E.2d 50, 57 (Va. 1989). In United States v. Bass, 266 F.3d 532 (6th Cir.
2001) a divided panel of the Sixth Circuit upheld the district court’s dismissal of
a death notice after the government refused to provide discovery for a capital
defendant’s selective prosecution claim. The Court of Appeals concluded that
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These courts have been unwilling to accept the proposition at the
heart of such statistically-based claims: that racial disparity, in the
absence of race-neutral explanations for it, constitutes sufficient
proof of unconstitutional discrimination. Moreover, attempts in
Congress to respond to McCleskey by passing a Racial Justice Act,
which would have provided a federal statutory vehicle for
challenging racial disparity, have repeatedly failed.8 Nevertheless,
since 1987 there have been a few isolated efforts by state
governing institutions to respond to racial disparity in capital
proceedings.9
This note will examine two such institutional responses: the
Kentucky Racial Justice Act10 and the New Jersey Supreme
Court’s Proportionality Review Project.11 This note focuses on
Kentucky and New Jersey because of their distinctions among
death penalty jurisdictions: Kentucky is the only state with a Racial
Justice Act on the books, and New Jersey is home to the court that
has conducted the most thorough proportionality reviews of death
McCleskey did not pose any bar at that preliminary stage. Id. at 540. The
Supreme Court reversed in a unanimous, per curiam opinion. U.S. v. Bass, 536
U.S. 862 (2002).
8
Don Edwards & John Conyers, The Racial Justice Act—A Simple Matter
of Justice, 20 DAYTON L. REV. 699, 700-1 (1995) (discussing failed attempts to
pass a Racial Justice Act in Congress between 1988 and 1994).
9
See, e.g., State v. Marshall, 613 A.2d 1059, 1108-10 (N.J. 1992)
(discussed infra Part III.C.); the Kentucky Racial Justice Act, KY. REV. STAT.
ANN. § 532.300(1) (Michie 2004) (discussed infra Part II.B); N.Y. Crim. Proc. §
470.30(3)(a) (McKinney 1995) (requiring the Court of Appeals to consider
“whether the imposition of the verdict or sentence [of death] was based upon the
race of the defendant or a victim of the crime for which defendant was
convicted”); Foster v. State, 614 So.2d 455 (Fla. 1992) (4-3 decision)
(dissenting opinion of Barkett, C.J., rejecting McCleskey as inconsistent with the
Florida constitution).
10
KY. REV. STAT. ANN § 532.300(1) (Michie 2004).
11
See State v. Ramseur, 524 A.2d 188 (N.J. 1987) (upholding the
constitutionality of the 1982 New Jersey death penalty statute and expressing the
court’s commitment to performing thorough examinations of the imposition of
the death penalty under the rubric of proportionality review). In July 1988 the
court appointed Prof. David Baldus as Special Master to assist it in developing a
system of proportionality review. State v. Marshall, 613 A2d 1059, 1063 (N.J.
1992).
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sentences, including an intensive effort to ensure that racial
disparity does not infect capital proceedings.12 Part I discusses
McCleskey and the U.S. Supreme Court’s death penalty decisions
that prepared the ground for it. Part II discusses a legislative
response to McCleskey, the Kentucky Racial Justice Act. Part III,
on the other hand, discusses a judicial response to McCleskey, the
New Jersey Supreme Court’s Proportionality Review Project.
Finally, Part IV analyzes the effectiveness of each state’s
institutional response to racial disparity in capital proceedings,
considers the two responses through the lens of relative
institutional competence, and recommends some measures to help
counteract this disparity.
This note proceeds from two basic premises. The first is that
racial disparity based on the race of murder victims is just as
problematic, morally and legally, as racial disparity based on the
race of murder defendants.13 The second is that racial disparity in
12
David Baldus & George Woodworth, Race Discrimination and the
Legitimacy of Capital Punishment: Reflections on the Interaction of Fact and
Perception, 53 DEPAUL L. REV. 1411, 1440 (2004) (noting that, “with the
exception of Kentucky, no remedial legislation has been adopted” to address
racial disparity in capital proceedings); Leigh B. Bienen, The Proportionality
Review of Capital Cases by State High Courts After Gregg: Only the
“Appearance of Justice”?, 87 J. CRIM. L. & CRIMINOLOGY 130, 161 n.109
(1996) (commenting on the New Jersey court’s “noteworthy” and “exceptional”
commitment to proportionality review); Barry Latzer, The Failure of
Comparative Proportionality Review of Capital Cases (With Lessons from New
Jersey), 64 ALB. L. REV. 1161, 1164 (2001) (noting that “the New Jersey court
committed itself to the most quantitative proportionality review in the United
States”).
13
See McCleskey v. Kemp, 481 U.S. 279, 291 n.8 (1987) (noting that
McCleskey had standing to raise an equal protection claim based on the race-ofvictim disparity, since a state would violate the Equal Protection Clause by
enforcing its criminal laws on “an unjustifiable standard such as race, religion,
or other arbitrary classification” (internal quotation marks omitted). See also
Baldus & Woodworth, supra note 12, at 1452-53 (arguing that race-of-defendant
and race-of-victim discrimination are morally indistinguishable and identifying
the immoral elements of race-of-victim discrimination). The immoral elements
of race-of-victim discrimination include:
a) its undervaluation of black lives, (b) its distortion of the decisionmaking process on the basis of race, (c) the fact that race is a but for
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363
capital proceedings is the product of racial discrimination—
although not necessarily conscious racial discrimination—by
various actors in the system, including prosecutors, judges, and
jurors.14 Significant support for this premise is found in studies of
capital cases15 and in studies of white Americans’ attitudes about
the death penalty.16 Researchers have identified racial prejudice as
the strongest predictor of death penalty support among white
Americans, ahead of such factors as income, education, and
cause of many death sentences and executions, (d) the unfairness it
visits upon black communities, and (e) the unseemly message it sends
that the overriding objective of capital punishment in America is the
protection of white people.
Id.
14
For a discussion of unconscious racism and an argument favoring its
recognition in equal protection analysis, see Charles R. Lawrence III, The Id, the
Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L.
REV. 317 (1987).
15
See, e.g., U.S. GENERAL ACCOUNTING OFFICE, supra note 5; Baldus et
al., supra note 5; William J. Bowers & Glenn L. Pierce, Arbitrariness and
Discrimination Under Post-Furman Capital Statutes, 26 CRIME & DELINQ. 563,
599 (1980) (finding a high risk of powerful white-victim bias in Florida, Texas,
and Georgia); Samuel R. Gross & Robert Mauro, Patterns of Death: An Analysis
of Racial Disparities in Capital Sentencing and Homicide Victimization, 37
STAN. L. REV. 27, 108 (1984) (finding “a remarkably stable and consistent”
pattern of racial discrimination in the imposition of the death penalty in
Arkansas, Florida, Georgia, Illinois, Mississippi, North Carolina, Oklahoma, and
Virginia); Gennaro F. Vito & Thomas J. Keil, Capital Sentencing in Kentucky:
An Analysis of the Factors Influencing Decision-Making in the Post-Gregg
Period, 79 CRIM. L. & CRIMINOLOGY 483 (1988) (finding that Kentucky
prosecutors were more likely to seek death in white-victim cases); Leigh J.
Bienen et. al, The Reimposition of Capital Punishment in New Jersey: The Role
of Prosecutorial Discretion, 41 RUTGERS L. REV. 27, 63 n.129 (1988)
[hereinafter Reimposition] (finding pronounced race-of-victim and race-ofdefendant disparities unexplained by non-racial variables).
16
See, e.g., Steven E. Barkan & Steven F. Cohn, Racial Prejudice and
Support for the Death Penalty by Whites, 31 J. RES. CRIME & DELINQ. 202
(1994) (reporting results of statistically-controlled studies that “[w]hite support
for the death penalty is . . . associated with antipathy to Blacks and with racial
stereotyping”); Joe Soss et al., Why Do White Americans Support the Death
Penalty?, 65 J. POL. 397, 416 (2003) (reporting results of statistically-controlled
studies that “[w]hite support for the death penalty in the United States has strong
ties to anti-black prejudice”).
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political party affiliation.17 If one accepts that disparity manifests
discrimination, it reasonably follows that racial disparity,
unexplained by non-racial factors, violates the Constitution.18 Yet
one need not recognize a causal connection between discrimination
and disparity to believe that racial disparity in capital proceedings
constitutes a serious social problem that must be remedied. The
mere appearance of racial discrimination in the ultimate
punishment, in a nation with a long history of racial subjugation, is
at the very least unseemly, if not downright corrosive of our justice
system.19
The specter of racial discrimination haunts the death penalty
system in America, yet officials in most jurisdictions have
attempted to ignore it.20 The efforts of the Kentucky legislature and
17
Soss et al., supra note 16, at 412.
Among the many arguments for recognizing racial disparity in capital
proceedings as a basis for finding a constitutional violation, see, e.g., John H.
Blume et al., Post-McCleskey Racial Discrimination in Capital Cases, 83
CORNELL L. REV. 1771 (1998) (proposing a burden-shifting scheme that would
allow a defendant to make out an equal protection violation if prosecutors fail to
rebut the defendant’s prima facie case, statistically based or otherwise); Scott
W. Howe, The Futile Quest for Racial Neutrality in Capital Selection and the
Eighth Amendment Argument for Abolition Based on Unconscious Racial
Discrimination, 45 WM. & MARY L.REV. 2083 (2004) (arguing that unconscious
racial bias infects capital proceedings and that such bias skews the process of
deciding who deserves the death penalty, making the resultant death penalty
cruel and unusual punishment). On the other hand, Justice Antonin Scalia
appears to believe that racial bias in capital proceedings does not necessarily
present a constitutional problem. Justice Scalia, who voted to uphold
McCleskey’s death sentence, wrote a memorandum to his fellow justices that
included this remarkable admission: “Since it is my view that unconscious
operation of irrational sympathies and antipathies, including racial, upon jury
decisions and (hence) prosecutorial decisions is real, acknowledged in the
decisions of this court, and ineradicable, I cannot honestly say that all I need is
more proof.” See Erwin Chemerinsky, Eliminating Discrimination in
Administering the Death Penalty: The Need for the Racial Justice Act, 35
SANTA CLARA L. REV. 519, 528 (1995) (citing the full text of the memorandum).
19
See Stephen B. Bright, Discrimination, Death and Denial: The Tolerance
of Racial Discrimination in Infliction of the Death Penalty, 35 SANTA CLARA L.
REV. 433, 481 (1995) (“Courts lose respect when they refuse to acknowledge
and remedy racial discrimination which is apparent to everyone else.”).
20
Kentucky’s Racial Justice Act is the nation’s only statute allowing a
18
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the New Jersey Supreme Court to confront this specter illustrate
the difficulties in defining, isolating, and remedying problems
where race and crime intersect. Although neither state institution
has achieved unequivocal success or produced unambiguous
lessons, the experiences of each are nonetheless instructive. They
are also cause for some hope that the future of the death penalty
will be more equitable than the past.
I. TALISMAN: MCCLESKEY V. KEMP
In 1987 the U.S. Supreme Court decided McCleskey v. Kemp,
considered at the time to be the last broad-based attack on the
constitutionality of the death penalty.21 Warren McCleskey’s
claims were crafted to take advantage of the death penalty
jurisprudence developed by the Supreme Court during the
preceding fifteen years—the first fifteen years of the modern death
penalty era, which dates from the Court’s invalidation of all capital
statutes in Furman v. Georgia in 1972.22 In Furman the Court
evinced concern about arbitrariness in capital sentencing23 and
race- and class-based discrimination.24 McCleskey’s legal team put
defendant to challenge the prosecutor’s decision to seek death. See Baldus &
Woodworth, supra note 12. The New Jersey Supreme Court is, arguably, the
only state high court to take a rigorous approach to screening out racially
discriminatory death sentences. See Bienen, supra note 12.
21
McCleskey v. Kemp, 481 U.S. 279 (1987); DAVID COLE, NO EQUAL
JUSTICE 134 (1999).
22
See McCleskey, 481 U.S. at 291, 301; see also Anderson Bynam, Eighth
and Fourteenth Amendments—The Death Penalty Survives: McCleskey v.
Kemp, 107 S.Ct. 1756 (1987), 78 CRIM. L. & CRIMINOLOGY 1080, 1080-81
(1988) (stating that, in Furman, “the Supreme Court attempted to clarify the
requirements for death penalty statutes in order to satisfy the mandates of the
Eighth and Fourteenth Amendments,” and asserting that McCleskey “drifted
away from” the goal of “a high degree of rationality consistency in capital
sentencing,” which the Court had espoused since Furman).
23
The Furman Court held that arbitrariness violates the Eighth
Amendment’s prohibition of cruel and unusual punishments. Furman v. Georgia,
408 U.S. 238, 239-40, 256, 305-6 (1972). The Eighth Amendment provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. CONST. amend. VIII.
24
Race- and class-based discrimination violates the Fourteenth
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these concerns to the test with the first rigorous and comprehensive
statistical study of how a state death penalty system operates.25
McCleskey was thus able to point to data supporting his argument
that the system that had put him on death row was both arbitrary
and discriminatory, and therefore unconstitutional.26 The Supreme
Court, while accepting the validity of his data, did not accept his
argument.27
A. Background: Furman and Gregg
In 1972 the Court decided Furman v. Georgia,28 which
effectively invalidated all existing death penalty statutes. In
Furman the Court issued a per curiam opinion supported by five
separate concurrences; the common ground of the concurrences
was the conclusion that in failing to guide judges and juries
properly in their sentencing decisions, the Georgia and Texas
capital punishment statutes under consideration produced death
sentences that were so arbitrary and capricious as to be “cruel and
unusual” under the Eighth Amendment.29 Justice Douglas’s
concurrence openly acknowledged that racial minorities and the
poor had always suffered most from this arbitrary scheme of
Amendment’s equal protection guarantee. See, e.g., Strauder v. West Virginia,
100 U.S. 303, 307 (1879). The relevant portion of the Fourteenth Amendment
provides, “nor shall any State . . . deny to any person within its jurisdiction the
equal protection of the laws.” U.S. CONST. amend. XIV. See also Bright, supra
note 19, at 433-34.
25
See Bynam, supra note 22, at 1106, 1110 (1988) (stating that in
McCleskey “the Court was presented with unparalleled statistical evidence that
the death penalty in Georgia was being applied in a racially influenced manner,”
and that “[t]he only way to get better results than those provided by the Baldus
study would be to ask the discretionary actors within the capital sentencing
infrastructure whether they had discriminated in a particular case”).
26
McCleskey, 481 U.S. at 286-88.
27
Id.
28
408 U.S. 238 (1972). The case was consolidated with Jackson v. Georgia
and Branch v. Texas.
29
Id. at 249-52 (Douglas, J., concurring). The Eighth Amendment
provides, “Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted. U.S. CONST. amend. XVIII.
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punishment.30
Within six months of the Furman decision, states began
enacting new death penalty statutes intended to address the
deficiencies identified by Justice Douglas’s opinion and the four
other opinions in support of the judgment.31 In 1976 the Court
considered the first challenges to these statutes.32 In Gregg v.
Georgia,33 Proffitt v. Florida,34 and Jurek v. Texas35 (collectively
known as Gregg), the Court upheld death penalty statutes that
provided judges and juries with sentencing guidelines by which to
make the life-or-death decision.36 In addition to sentencing
guidelines, Gregg also approved—but did not enshrine as
constitutionally required—three procedural reforms featured in the
new Georgia statute.37 The first was bifurcation of the trial,
providing for separate deliberations on guilt and punishment.38 The
30
Id. at 355-56. (quotation from J. Douglas). See also Bright, supra note
19, at 433-34 (stating that the Furman decision was “due to arbitrariness and
discrimination against racial minorities and the poor”).
31
DEATH PENALTY INFORMATION CENTER, HISTORY OF THE DEATH
PENALTY, PART I, at http://www.deathpenaltyinfo.org/article.php?scid=15&
did=410#ConstitutionalityoftheDeathPenaltyinAmerica (last visited Jan. 15,
2005) (stating that, after the Furman decision, advocates of capital punishment
began proposing new statutes that they believed would end arbitrariness in
capital sentencing, and that Florida rewrote its death penalty statute only five
months after Furman).
32
Id.
33
428 U.S. 153 (1976).
34
428 U.S. 242 (1976).
35
428 U.S. 262 (1976).
36
DEATH PENALTY INFORMATION CENTER, supra note 31. In deciding on
the sentence, the judge or jury was to consider any of ten statutory aggravating
circumstances supported by the evidence, as well as “any mitigating or
aggravating circumstances otherwise authorized by law.” Gregg, 428 U.S. at
164. The statutory aggravating factors included that “the offense of murder was
committed by a person who has a substantial history of serious assaultive
criminal convictions,” that the offense “was committed while the offender was
engaged in the commission of another capital felony,” and that “the offender
committed the offense of murder for himself or another, for the purpose of
receiving money or any other thing of monetary value.” Id. at 165 n.9.
37
DEATH PENALTY INFORMATION CENTER, supra note 31.
38
Gregg, 428 U.S. at 163-64. The Georgia statute provided that after a
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second was automatic appellate review of convictions and
sentences.39 The third reform was proportionality review, by which
state appellate courts could compare sentences in capital cases and
determine whether a given sentence was disproportionately harsh
in light of the crime and the defendant.40
B. Warren McCleskey’s Powerful Case
Warren McCleskey was convicted and sentenced to death in a
Georgia state court for armed robbery and the murder of a white
police officer.41 McCleskey challenged his sentence, grounding his
arguments in the Eighth and Fourteenth Amendments to the U.S.
Constitution.42 First, he claimed that Georgia violated the Equal
Protection Clause of the Fourteenth Amendment by administering
the death penalty in a racially discriminatory manner.43 McCleskey
argued that race affected the application of the Georgia statute in
two ways. First, defendants convicted of murdering whites were
more likely to be sentenced to death than defendants convicted of
murdering blacks.44 Second, black defendants were more likely to
verdict or plea of guilty, a sentencing hearing would be held at which the judge
or jury would “hear additional evidence in extenuation, mitigation, and
aggravation of punishment, including the record of any prior criminal
convictions and pleas of guilty or pleas of nolo contendere of the defendant, or
the absence of any prior conviction and pleas.” Id.
39
Id. at 166-67.
40
Id. at 167. Since Gregg, state high courts have differed as to what
proportionality review entails, and how much judicial effort it deserves. See
Bienen, supra note 12, at 132 (noting that proportionality review “can implicate
broad principles of federal and state constitutional law and trigger the
implementation of an empirical examination of the state’s entire capital case
processing system, raising issues of racial and economic disparity and
questioning the charging practices and autonomy of local prosecutors. Or, it can
result in no more than a conclusory sentence tacked on to the end of a state high
court’s affirmance of a death sentence.”).
41
McCleskey v. Kemp, 481 U.S. 279 (1987).
42
Id. at 286.
43
Id. at 291-92.
44
Id. at 291.
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be sentenced to death than white defendants.45 McCleskey
presented a wealth of statistical evidence from a study of more
than 2,000 Georgia capital cases tried in the 1970s.46 The study,
conducted by a team of researchers led by Professor David Baldus
of the University of Iowa College of Law, produced some
remarkable findings.47 It revealed that prosecutors sought the death
penalty in 70 percent of cases involving black defendants and
white victims, but just 19 percent of cases involving white
defendants and black victims.48 Defendants received death
sentences in 22 percent of cases involving black defendants and
white victims, but just 3 percent of cases involving white
defendants and black victims.49 After subjecting the data to an
extensive analysis that accounted for 230 variables that could have
provided non-racial explanations for these disparities,50 Baldus
concluded that Georgia defendants who killed whites were 4.3
times more likely to receive a death sentence than defendants who
killed blacks.51 This was the most sophisticated and powerful
evidentiary showing a capital defendant had ever made.52
McCleskey also argued that because of the significant
demonstrated risk that race, an arbitrary factor, played a role in
capital sentencing, the Georgia system violated the Cruel and
Unusual Punishments Clause of the Eighth Amendment.53 This
45
Id. The Court noted that McCleskey had standing to raise an equal
protection claim based on the race-of-victim disparity, since a state would
violate the Equal Protection Clause by enforcing its criminal laws on “an
unjustifiable standard such as race, religion, or other arbitrary classification” Id.
at 291 n.8 (internal quotation marks omitted).
46
Id. at 286-87.
47
Id. at 287.
48
Id.
49
Id. at 286.
50
For example, one variable was whether or not the defendant was the
prime mover behind the homicide; another was whether or not the defendant had
a prior record of conviction for murder, armed robbery, rape, or kidnapping with
bodily injury. Id. at 355, n.9 & 10.
51
Id. at 287.
52
See Bynam, supra note 22, at 1106.
53
McCleskey v. Kemp, 481 U.S. 279, 299 (1987).
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argument followed directly in Furman’s footsteps.54
By a one-vote margin the Court rejected McCleskey’s claims.55
Justice Powell, writing for the Court, began his analysis by
affirming the rule that a defendant who alleges an equal protection
violation has the burden of proving the existence of purposeful
discrimination.56 Justice Powell concluded that McCleskey’s equal
protection claim must fail because he had not shown that any
authorities had acted with the requisite intent to discriminate in his
particular case.57 In addition, Justice Powell pointed out that
McCleskey had failed to show that the Georgia legislature
maintained its system of capital punishment because of, not in
spite of, the system’s racially discriminatory effect.58 As for
McCleskey’s Eighth Amendment claim, Justice Powell stated that
because the sentence was imposed under procedures that focused
the sentencer’s discretion on the particular crime and the particular
defendant, the Court would presume that McCleskey’s death
sentence was not “wantonly and freakishly” imposed in violation
of Furman.59 Finally, Justice Powell concluded that the degree of
risk of racial discrimination against McCleskey was acceptable
under the Eighth Amendment because discrimination was a byproduct of discretion, which plays a fundamental and valuable role
in the criminal justice system.60
At the end of the McCleskey opinion, Justice Powell lifted the
veil on the policy concerns behind the Court’s decision. He noted
that if the Court crafted a rule under which racial disparity
54
See 481 U.S. at 322 (“Since Furman v. Georgia, the Court has been
concerned with the risk of the imposition of an arbitrary sentence, rather than the
proven fact of one.”) (Brennan, J., dissenting) (internal citation omitted).
55
481 U.S. at 291-92, 308.
56
Id. at 292.
57
Id. at 297.
58
Id. at 298.
59
Id. at 308.
60
Id. at 313. The Court cited Gregg v. Georgia in support of the
proposition that, under a statute providing guided discretion, the existence of
discretion at each stage of the criminal justice system does not violate the
Constitution. McCleskey, 481 U.S. at 307 (citing Gregg v. Georgia, 428 U.S.
153, 199 (1976). See also cases cited supra note 33 and note 34 and
accompanying text.
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invalidates capital sentencing decisions, it would face claims that
racial disparity should invalidate punishments in much of the rest
of the criminal law.61 Justice Powell also asserted that legislatures
are better equipped than courts to interpret and respond to largescale studies such as the one McCleskey presented.62 In short, the
Court contended that “McCleskey’s wide-ranging arguments that
basically challenge the validity of capital punishment in our
multiracial society” called for a response beyond the Court’s
institutional competence. 63
C. A Failed Attempt to Respond: The Federal Racial Justice
Act
The first legislative attempt to respond to McCleskey came
from Congress in the spring of 1988. Led by Representative John
Conyers (D-Mich.) and Senator Edward Kennedy (D-Mass.),
several members began work on legislation to address the racial
disparities highlighted by the case.64 The ill-fated Racial Justice
Act sought to remedy racial discrimination in capital sentencing
through the exercise of Congress’s enforcement power under
Section Five of the Fourteenth Amendment.65 The Act’s sponsors
responded to the McCleskey Court’s holding that only intentional
discriminatory actions are remediable by expressly allowing
statistical evidence of disparate impact to raise an inference of
61
481 U.S. at 314-15. Justice Powell contended that “[a]pparent disparities
in sentencing are an inevitable part of our criminal justice system.” Id. at 312.
62
Id. at 314-19.
63
Id. at 319. Justice Powell asserted that legislatures “are better qualified to
weigh and ‘evaluate the results of statistical studies in terms of their own local
conditions and with a flexibility of approach that is not available to the courts’”
Id. (quoting Gregg, 428 U.S. at 186). See infra Part IV.B for a comparison of the
legislative and judicial responses to racial disparities in capital proceedings.
64
Paul Schoeman, Note, Easing the Fear of Too Much Justice: A
Compromise Proposal to Revise the Racial Justice Act, 30 HARV. C.R.-C.L. L.
REV. 543, 551 (1995). See also Edwards and Conyers, supra note 8, at 700 &
n.39.
65
H.R. REP. NO. 103-458 (1994). Section Five of the Fourteenth
Amendment reads: “The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.”
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unlawful racial discrimination.66 The sponsors noted that the U.S.
Supreme Court had already recognized the validity of such
showings in the contexts of jury venires, jury selection, voting
rights, and employment.67 Although the U.S. House of
Representatives passed versions of the Racial Justice Act in 1990
and 1994, the legislation never cleared the House-Senate
conference process and never became law.68
II. LEGISLATIVE RESPONSE: THE KENTUCKY RACIAL JUSTICE ACT
In the modern death penalty era, Kentucky has been a
relatively quiet death penalty jurisdiction. Since 1976 the
Bluegrass state has executed only two persons, both of whom were
white.69 Its death row currently houses thirty-five inmates, of
66
Id.
Id. See Batson v. Kentucky, 476 U.S. 79 (1986) (holding that showing of
racial disparity in peremptory strikes of venire members established prima facie
case of discrimination, which, unrebutted, established violation of equal
protection); City of Mobile v. Bolden, 446 U.S. 55 (1980) (Stevens, J.,
concurring in the judgment) (stating that voting structure’s significant adverse
impact on minority group, unsupported by neutral justification, could make
structure unconstitutional); Castaneda v. Partida, 430 U.S. 482 (1977) (holding
that showing of racial or ethnic disparity in grand jury venires established prima
facie case of discrimination, which, unrebutted, established violation of equal
protection); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977)
(holding that, under Civil Rights Act of 1964, showing pattern of practice of
racially differential treatment, unless rebutted, constitutes violation of Act);
Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding that complaint alleging
that new voting district that removed 99 percent of black voters from city
constitutes due process and equal protection violation sufficiently stated cause of
action).
68
See Edwards & Conyers, supra note 8, at 700-1; Schoeman, supra note
64, at 553. Opponents of the Act expressed the view that it was unnecessary and
that if passed it would make carrying out death sentences impossible. See, e.g.,
136 CONG. REC. S. 6885 (daily ed. 1990) (statement of Sen. Graham) (“This act
would effectively end the ability of States to constitutionally apply the death
penalty.”).
69
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., DEATH ROW
U.S.A (Fall 2004), available at http://www.naacpldf.org/content/pdf/pubs/
drusa/DRUSA_Fall_2004.pdf [hereinafter Death Row U.S.A.]. In number of
executions, Kentucky ranks 26th (tied with Montana and Oregon) among the 33
67
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whom seven are black and one is Latino.70 Thus, Kentucky’s death
row is 20 percent black, while the state’s black population is 7.3
percent.71
Despite its low rate of executions in the modern death penalty
era, Kentucky has a disturbing history of racial violence.72 The Ku
Klux Klan was a powerful force in Kentucky for decades following
its inception in 1868, terrorizing blacks, Union Army veterans, and
Freedmen’s Bureau agents.73 Between 1860 and 1939, Kentucky
had 353 lynchings, 258 of which targeted blacks.74 This figure
includes eighty-five lynchings of blacks on suspicion of rape or
attempted rape.75 Even when official trials took place during this
period, mobs outside courtrooms frequently demanded that courts
impose the death penalty when blacks were accused of rape or
murder.76 Throughout the period from 1860 to 1960, blacks were
consistently executed at rates disproportionate to their presence in
jurisdictions that have put inmates to death since 1976. Id.
70
KENTUCKY DEPARTMENT OF CORRECTIONS, PROFILES OF KENTUCKY
DEATH ROW INMATES, at http://www.corrections.ky.gov/inmateinfo/
deathrow.htm (last visited Jan. 15, 2005).
71
Id.; U. S. CENSUS BUREAU, KENTUCKY QUICKFACTS, at
http://quickfacts.census.gov/qfd/states/21000.html (last visited Jan. 15, 2005).
This comparison is not intended as evidence of disparity in death penalty
proceedings, since the relevant population for that determination would be
persons accused of committing aggravated murder. This comparison is made
simply to provide a snapshot of the racial makeup of death row and the state as a
whole.
72
See Defendant’s Motion to Bar the Commonwealth from Subjecting Him
to a Sentence of Death Sought on the Basis of Race, Commonwealth of
Kentucky v. Nathaniel Wood (Barren Circuit Court 2003, No. 01-CR-00059, on
file with the Journal of Law and Policy) [hereinafter Wood motion] (discussing
Kentucky’s history of slavery, segregation, and racial violence); Gerald Neal,
Not Soft on Crime, But Strong on Justice: The Kentucky Racial Justice Act: a
Symbol, a Statement of Legal Principle, and a Commitment to Systemic
Fundamental Fairness (unpublished manuscript, on file with the Journal of Law
and Policy) (noting that “[t]he end of the Civil War ushered in a prolonged
period of racial violence in Kentucky”).
73
Wood motion, supra note 72, at 14.
74
Id. at 18; Neal, supra note 72, at 3.
75
Neal, supra note 72, at 3.
76
Wood motion, supra note 72, at 22.
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the Kentucky population.77 Perhaps Kentucky’s most significant
distinction as a death penalty state is that it was the last to carry out
a public execution, the 1936 hanging of Rainey Bethea, a young
African-American man, before a festive crowd of 20,000
spectators in Owensboro.78
A. The Context for Kentucky General Assembly Action
In 1992 the Kentucky General Assembly passed a bill calling
for a study to determine whether racial bias played any role in
death sentencing in the state.79 To that end, the state commissioned
two University of Louisville professors, Thomas J. Keil of the
Sociology Department and Gennaro F. Vito of the School of
Justice Administration, to study the prosecution of all homicides in
Kentucky from 1976 to 1991.80
Professors Keil and Vito had already studied the effect of race
on Kentucky capital proceedings, using data from December 1976
to October 1986, and published their results in 1988.81 In that study
Keil and Vito reported that, by simple numerical comparison, a
higher percentage of blacks accused of killing whites (44.7
percent) went before a “death-qualified jury”82 than blacks accused
77
Id. at 25. Of 164 persons executed between 1911 and 2000, 52 percent
were black. Neal, supra note 72, at 3.
78
Wood motion, supra note 72, at 21.
79
Neal, supra note 72, at 9.
80
Racial Justice Act Becomes Law: Not Soft on Crime, But Strong on
Justice, THE ADVOCATE, July 1998, at 5, available at http://dpa.ky.gov/
library/advocate/july98/Racial.html [hereinafter Racial Justice Act Becomes
Law].
81
Thomas J. Keil & Gennaro F. Vito, Capital Sentencing in Kentucky: An
Analysis of the Factors Influencing Decision-Making in the Post-Gregg Period,
79 CRIM. L. & CRIMINOLOGY 483 (1988).
82
A death-qualified jury is one composed of jurors who have said that they
could fairly consider the death penalty as a sentence and that they would not
automatically vote for or against death if they find the defendant guilty of capital
murder. See Morgan v. Illinois, 504 U.S. 719 (1992); Wainwright v. Witt, 469
U.S. 412 (1985); Witherspoon v. Illinois, 391 U.S. 510 (1968). Because a deathqualified jury is a necessary condition for a capital trial, and because district
attorneys have a great deal of discretion in seeking a death sentence as long as at
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of killing other blacks (12.9 percent) or whites accused of killing
blacks (0 percent).83 Among black defendants tried for a capital
offense, 63.6 percent were accused of killing whites.84
Furthermore, among those blacks who actually received death
sentences, 87.5 percent had been convicted of killing whites.85
After subjecting this data to statistical analysis that controlled for
non-racial factors that may have led to death sentences,86
Professors Keil and Vito still found that prosecutors were more
likely to seek the death penalty for blacks accused of killing whites
than in other homicide cases.87 However, the study did not reveal a
statistically significant correlation between black defendant-white
victim cases and death sentences, suggesting that capital jurors’
racial considerations were negligible.88 Thus, it appeared that
prosecutorial discretion to seek the death penalty accounted for the
heightened risk that blacks accused of killing whites would end up
on death row.89
When Professors Keil and Vito released their statecommissioned report in 1993, their findings were largely
consistent with those in their 1988 study and with some of the
Baldus team’s findings in McCleskey.90 By simple numerical
comparison, black defendant-white victim cases were more likely
to be prosecuted capitally than cases with any other defendantvictim racial combination.91 At trial, a Kentucky defendant was
least one statutory aggravating factor is present, in Keil and Vito’s study a
death-qualified jury serves as a statistical proxy for the Commonwealth’s
Attorney’s decision to seek death. See Keil & Vito, supra note 81, at 500.
83
Keil & Vito, supra note 81, at 499.
84
Id. at 498.
85
Id.
86
Non-racial factors included, for example, the sex of the victim and
whether the defendant had a prior conviction for a violent offense. Id.
87
Id. at 502.
88
Id. at 501.
89
Keil & Vito, supra note 81, at 502.
90
Thomas J. Keil & Gennaro F. Vito, Race and the Death Penalty in
Kentucky Murder Trials, 1976-1991: A Study of Racial Bias as a Factor in
Capital Sentencing, 20 AM. J. OF CRIM. JUSTICE 17, 26-30 (1995) (reporting and
discussing 1992-93 state-commissioned findings).
91
Id. at 26. Prosecutors sought death in 33 percent of black defendant-
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more likely to receive a death sentence if convicted of killing a
white person than a black person, and a black defendant convicted
of killing a white person was the most likely of all to receive a
death sentence.92 Unlike the 1988 study, the 1993 study indicated
that the defendant-victim racial combination did affect jurors’
sentencing decisions.93 Keil and Vito found that the black
defendant-white victim combination was a significant factor in
both the likelihood of capital prosecution and the likelihood of
death sentence, even after statistical analysis accounting for factors
such as multiple-victim crime, defendant’s prior criminal record,
and personal relationship between defendant and victim.94 Keil and
Vito concluded that, although the exact source of discrimination
was impossible to pinpoint,95 “the impact of race upon
prosecutorial deliberations cannot be justified by the presence of
other, legitimate factors.”96 The researchers further concluded that
juries “considered the killing of a White by a Black more
deserving of capital punishment” than other racial combinations.97
After failed attempts in the 1994 and 1996 legislative sessions,
Senator Gerald Neal, then the Kentucky Senate’s only AfricanAmerican member, introduced the Kentucky Racial Justice Act in
the 1998 session.98 The Commonwealth’s Attorneys opposed the
KRJA and backed attempts to dilute it with floor amendments.99
After two hours of vigorous debate, the legislation passed the
Senate by a vote of 22 to 12.100 Four days later another Africanwhite victim cases, in 20 percent of white defendant-white victim cases, 17
percent of white defendant-black victim cases, and 14 percent of black
defendant-black victim cases. Id. at 25.
92
Id. at 30.
93
Id. at 27. Professors Keil and Vito do not address this discrepancy in
their journal article reporting on the 1993 study. Id.
94
Id.
95
Id. at 30.
96
Id. at 26.
97
Id. at 27.
98
Neal, supra note 72, at 10.
99
Id. at 9, 20. One Senate opponent of the KRJA characterized the vote as
“a vote on whether we’re soft on crime.” Id. at 10. Sen. Neal countered, “I’m not
soft on crime, I’m strong on justice.” Id.
100
Racial Justice Act Becomes Law, supra note 80.
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American legislator, Representative Jesse Crenshaw, introduced an
identical bill in the House.101 During floor debate, Rep. Crenshaw
introduced a letter from a retired African-American state judge and
former prosecutor, who described the KRJA as “the least we can
do to help erase the perception of minorities that they do not get a
fair deal before the courts.”102 Again after vigorous debate, and
after three amendments were defeated, the House passed the bill 70
to 23.103 Three days later Governor Paul Patton, a Democrat,
signed the nation’s first racial justice act into law.104
B. The Provisions of the Kentucky Racial Justice Act
Unlike the proposed federal act, which would have aimed
Congress’s enforcement power at a tainted sentence after its
imposition, the Kentucky Racial Justice Act (KRJA) focuses on the
period before trial, during which a Commonwealth’s Attorney
(Kentucky parlance for district attorney) decides whether or not to
seek the death penalty in a given murder case.105 A Kentucky
capital defendant who suspects that his race or the race of the
victim provided the basis for the prosecution’s decision to seek
death may allege a violation of the KRJA at a pretrial
conference.106 If the defendant so alleges, the court must schedule
a hearing on the claim.107 If the defendant makes a prima facie
showing of a racial basis and the prosecution fails to rebut it, the
court must order that a death sentence cannot be sought in that
case.108 Thus while the federal Racial Justice Act would have
attempted to counteract racial discrimination by prosecutors, juries,
101
Id.
Id.
103
Id.
104
KENTUCKY LEGISLATURE, LEGISLATIVE RECORD ONLINE, at
http://www.lrc.state.ky.us/recarch/98rs/SB171.htm (last visited Jan. 15,
2005).
105
KY. REV. STAT. ANN. § 532.300 (Michie 2004).
106
9 LESLIE ABRAMSON, KENTUCKY PRACTICE SERIES, CRIMINAL
PRACTICE AND PROCEDURE § 31.31 (West 2004).
107
Id.
108
Id.
102
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or both, the KRJA is aimed solely at checking racial discrimination
by prosecutors.109
The Kentucky Racial Justice Act proclaims, “No person shall
be subject to or given a sentence of death that was sought on the
basis of race.”110 The statute provides that a defendant may
establish that race was “the basis” of a decision to seek death “if
the court finds that race was a significant factor in decisions to
seek the sentence of death in the Commonwealth at the time the
death sentence was sought.”111 Thus, on the face of the statute,
statewide practice, rather than county practice, appears to be the
benchmark.112 The statute expressly recognizes that statistical
evidence is relevant to this “significant factor” determination—in
stark contrast to the distrust of statistics embodied in McCleskey
and its progeny.113 Following the proposed federal act’s lead, the
KRJA accounts for both race-of-defendant discrimination and
race-of-victim discrimination.114 A defendant may show that death
was sought “significantly more frequently” for persons of one race
than persons of another race (race-of-defendant discrimination)115
or that death was sought “significantly more frequently” as
punishment for capital offenses against persons of one race as
compared to another race (race-of-victim discrimination).116
Lest the KRJA seem like a defendant’s dream, however, the
final two subsections erect a high evidentiary wall for the
defendant to surmount.117 The defendant must “state with
particularity how the evidence supports a claim that racial
considerations played a significant part in the decision to seek a
109
H.R. REP. NO. 103-458 (1994); KY. REV. STAT. ANN. § 532.300 (Michie
2004).
110
KY. REV. STAT. ANN. § 532.300(1) (Michie 2004).
Id. § 532.300(2).
112
But see text accompanying notes 118-19 and 163-64.
113
Id. § 532.300(3); see McCleskey, 481 U.S. at 312, for Justice Powell’s
comment that “[a]pparent disparities in sentencing are an inevitable part of our
criminal justice system.”
114
Id.
115
KY. REV. STAT. ANN § 532.300(3)(a) (Michie 2004).
116
Id. § 532.300(3)(b).
117
See id. §§ 532.300(4), (5).
111
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death sentence in his or her case.”118 This provision appears to
conflict with the provision permitting prosecutorial decisions “in
the Commonwealth”—presumably meaning statewide—to serve as
the benchmark for determining whether or not race was the basis
for the death notice in a particular defendant’s case.119 In addition,
the defendant has the burden of proving by clear and convincing
evidence that race was the basis of the decision to seek death in his
case, and the prosecution may offer evidence in rebuttal.120
C. Effects of the Kentucky Racial Justice Act
Seven years after the KRJA’s passage, its effects remain
murky. Attempts to measure the Act’s effect on defendants are
complicated by the fact that its provisions are designed to operate
before trial.121 If a defense lawyer uses the KRJA to stave off a
Commonwealth’s Attorney’s death notice, the issue is almost
certain not to reach the appellate court, especially if the lawyer
does so through informal negotiation rather than a formal
motion.122 Presumably a failed KRJA motion would be more likely
than a successful one to create an issue on appeal, but Kentucky
appellate courts have yet to address the KRJA in a published
opinion.123
Still, there are other indirect ways to try to assess the KRJA’s
impact. In particular, it is worthwhile to examine the Kentucky
Supreme Court’s treatment of claims of racial discrimination in
capital proceedings, however such claims were couched, before
118
Id. § 532.300(4).
Id. § 532.300(2); see discussion accompanying notes 163-64.
120
Id. § 532.300(5).
121
KY. REV. STAT. ANN § 532.300 (Michie 2004).
122
9 LESLIE ABRAMSON, KENTUCKY PRACTICE SERIES, CRIMINAL
PRACTICE AND PROCEDURE § 31.32 (West 2004) The Commonwealth must give
defense counsel “adequate notice” that it will seek the death penalty. Id. (citing
Perdue v. Com., 916 S.W.2d 148 (Ky.1995)).
123
Online searches of WestLaw and LexisNexis produced no Kentucky
cases containing the term “Kentucky Racial Justice Act” or its statutory section
number as of Jan. 15, 2005.
119
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and after the Act’s passage in 1998.124 Although the KRJA is
intended for use in trial courts, it is reasonable to postulate that the
state’s highest court has taken the Act into account in its
jurisprudence.125
In the 1987 case of Stanford v. Commonwealth, a black 17year-old was tried as an adult, convicted, and sentenced to death
for the rape and murder of a white woman.126 The Kentucky
Supreme Court rejected Kevin Stanford’s claim that the statute
providing for referral of juvenile cases to adult criminal court had
been applied in an unconstitutional manner by over-representing
blacks in such transfers.127 The court acknowledged the “disturbing
statistic” that during the period from 1975 to 1979, 68 percent of
the juveniles transferred to adult court were black, even though
blacks made up only 30 percent of juvenile cases.128 Nevertheless,
it noted that Stanford’s statistical showing indicated that black
juveniles had committed more than half of all the homicides and
robberies and nearly half the assaults and rapes.129 More important
to the court, however, was the fact that the statistics did not
indicate how many of the adult court transfers involved repeat
offenders (like Stanford), for whom previous state attempts at
rehabilitation had proved unsuccessful.130 Implicit in the court’s
mention of repeat offenders is the idea that recidivism is a nonracial factor that presumably would correlate strongly with transfer
to adult court. The court finished its paragraph on the
124
See discussion infra Part II.B.
This examination is meant to assess three alternative hypotheses: 1) that
the Kentucky Supreme Court understood the KRJA as a signal from the
legislative branch to give greater credence to racial discrimination claims in
death cases; 2) that the court understood the KRJA to mean that such claims are
to be handled pre-trial, thus justifying a less rigorous approach on appeal; or 3)
that the court has ignored the Act.
126
734 S.W.2d 781 (Ky. 1987). This decision was handed down on April
30, 1987, just eight days after McCleskey; the Kentucky court makes no mention
of the landmark case.
127
Id. at 791.
128
Id.
129
Id. The court did not explain how these facts justify the 68 percent
transfer figure.
130
Id.
125
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discrimination claim resoundingly: “We are not at all persuaded by
Stanford’s statistics and find no evidence whatsoever to convince
us that Stanford or any other juvenile was directly or indirectly the
victim of racial discrimination.”131
Seven years later and four years before the passage of the
KRJA, the Kentucky Supreme Court considered Bussell v.
Commonwealth.132 Charles Bussell, a black defendant convicted
and sentenced to death by an all-white jury for the murder of a
white woman, claimed that the death penalty in Kentucky operated
in an arbitrary, discriminatory, and freakish manner.133 Bussell
relied on the Keil and Vito study commissioned by the General
Assembly to support his structural challenge to the application of
the death penalty statute.134 Citing McCleskey and a Kentucky case
that followed in 1990, the court rejected his claim.135 In its brief
explanation, the court stated that the Keil and Vito study “indicates
it is difficult, if not impossible, to control any perceived racial bias
through judicial review.”136 The court stated that it must avoid
“any kind of actual or perceived institutional racism that would
contribute” to death sentences, but concluded that, “[i]n [Bussell’s]
131
Id. In June 2003 Gov. Paul Patton commuted Kevin Stanford’s death
sentence to life imprisonment, citing the “injustice” of sentencing a juvenile
offender to death. Henry Weinstein, Death Sentence Commuted for Ky. Man
Who Killed at 17, THE LOS ANGELES TIMES, June 22, 2003, at 36.
132
882 S.W.2d 111 (Ky. 1994).
133
Id. at 115.
134
Id. For a discussion of this study, see infra Part II.A.
135
Bussell, 882 S.W.2d at 115.
The United States Supreme Court in McCleskey v. Kemp . . . rejected a
similar type of challenge to the application of the death penalty statute
in Georgia. Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990),
held that the argument that the death penalty in Kentucky operates in an
arbitrary, discriminatory and freakish manner has been repeatedly
presented, considered and dismissed.
Id.
136
Id. Although the court did not elaborate on this statement, it could be
alluding to Keil and Vito’s comments that “the exact source of discrimination is
difficult to pinpoint” and “[d]iscrimination did occur somewhere in this process
but it is often subtle and difficult to discern.” Keil & Vito, supra note 90, at 30,
31.
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case, there [was] no logical connection between the crime, the
imposition of the death penalty and racial bias.”137 In its twoparagraph proportionality review,138 the court concluded, without
citation or further explanation, that “[t]he sentence was not fixed
because he was black or because the victim was white [but
rather] . . . because he was found guilty as charged.”139
As the Stanford and Bussell decisions illustrate, the court was
plainly resistant to statistically-based claims of racial
discrimination in capital cases before the KRJA’s passage.140 Even
with the Act on the books, the court appears to have been no more
receptive to such claims. In the 2003 case of Wheeler v.
Commonwealth,141which involved a black defendant and two black
victims, the court took just four sentences to dispatch the claim that
the Kentucky death penalty was discriminatory, arbitrary, and
disproportionate.142 The court pointed out that “[t]his Court and the
United States Supreme Court have repeatedly rejected the
statistical analysis presented by Wheeler as insufficient to
invalidate a specific finding by a jury.”143
137
Id.
Bussell, 882 S.W.2d at 116. Kentucky law provides for automatic
proportionality review, in which the state Supreme Court determines “[w]hether
the sentence of death is excessive or disproportionate to the penalty imposed in
similar cases, considering both the crime and the defendant.” KY. REV. STAT.
ANN. § 532.075(3)(c) (Michie 2002). The universe of cases for comparison is
“all felony offenses in which the death penalty was imposed after Jan. 1, 1970.”
KY. REV. STAT. ANN. § 532.075(6)(a) (Michie 2004).
139
Bussell, 882 S.W.2d at 116. This conclusory statement, which ignores
the broad discretion prosecutors and juries exercise in capital proceedings,
recalls Justice Powell’s dismissive remark in McCleskey that “a legitimate and
unchallenged explanation for the [penalty] decision is apparent from the record:
McCleskey committed an act for which the United States Constitution and
Georgia laws permit imposition of the death penalty.” 481 U.S. at 297.
140
See Neal, supra note 72, at 22.
141
121 S.W.3d 173 (Ky. 2003).
142
Id. at 186-87.
143
Id. The court did not cite any U.S. Supreme Court precedents, but it did
cite two of its own decisions in support of its rejection of Wheeler’s claim that
the death penalty is arbitrary and discriminatory. See Woodall v.
Commonwealth, 63 S.W.3d 104, 133 (2001) (rejecting white defendant’s claim
that the death penalty is arbitrary and discriminatory with two citationless
138
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383
Because no Kentucky Supreme Court opinion contains any
mention of the KRJA,144 it is impossible to know if the court has
understood the Act to mean that racial discrimination claims are to
be handled before trial (and, therefore, if a defendant’s case
appears on its docket, the capital prosecution against him must
have passed KRJA muster), or if the court has simply ignored the
Act. Given the court’s treatment of post-1998 claims of racial
discrimination in capital proceedings, it is safe to infer that the
court has not taken the KRJA as a signal from the legislative
branch to give greater credence to racial discrimination claims in
capital cases.
While capital defendants have made no discernible headway in
the Kentucky Supreme Court with claims of disparity, public
defenders in the state have reported some instances of success in
using the KRJA before trial.145 In September 2002 the Kentucky
Department of Public Advocacy surveyed the state’s public
defenders, asking about their experiences using the KRJA and their
views on its effects.146 Of the sixty-four public defenders who
returned the survey, only four reported having had a case that
involved the KRJA.147 In one such case, with a white victim, the
Jefferson County Assistant Commonwealth’s Attorney initially
declined to make a plea offer, citing an unspecified policy.148
sentences: “Woodall claims that the death penalty in Kentucky is
unconstitutionally arbitrary and insidiously discriminatory. This Court has
previously rejected similar arguments as stated above.”); Bowling v.
Commonwealth, 873 S.W.2d 175 (Ky. 1993) (finding death sentence for white
defendant who killed two people and wounded infant proportionate). These
citations can only be taken to refer to procedural proportionality review, since
proportionality is the only issue Wheeler, Woodall, and Bowling all have in
common. See KY. REV. STAT. ANN. § 532.075(3)(c) (Michie 2004) (requiring
state supreme court to determine “[w]hether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases, considering both the
crime and the defendant”). Thus the court appears not to distinguish between its
review of constitutional claims and its proportionality review.
144
See supra note 123.
145
Neal, supra note 72, at 12-13.
146
Id. at 12.
147
Id.
148
Id. at 13.
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Defense counsel prepared to argue that the defendant did not
receive an offer because the victim was white and moved to
discover the policy of the Commonwealth’s Attorney’s office
concerning plea bargaining in capital cases.149 Defense counsel
subpoenaed the county Commonwealth’s Attorney and the
Assistant Commonwealth’s Attorney on the case.150 Although the
court quashed all subpoenas and denied the defense motion on the
Commonwealth’s plea bargain policy, prosecutors eventually
offered the defendant life imprisonment with parole eligibility.151
Two other public defenders reported similar scenarios, in which
they responded to the Commonwealth’s death notices with
motions, citing the KRJA, to discover the prosecutors’ charging
history in potentially capital cases.152 In both cases, prosecutors
subsequently made non-capital plea offers, which the defendants
accepted.153
When asked in the survey to comment on the symbolic
meaning of the KRJA, most public defenders’ comments were
positive, ranging from unbridled enthusiasm154 to guarded
optimism.155 However, when asked what effect they thought the
KRJA actually had on race discrimination in Kentucky, public
defenders’ comments were more negative than positive.156 One
called the Act “nice to have . . . as a back up.”157 Another remarked
that the KRJA “recognizes that bias is at least possible and is not
149
Id.
Id.
151
Neal, supra note 72, at 13.
152
Id.
153
Id. In both of these cases the Commonwealth’s Attorneys complied with
the discovery requests—in one case, the Commonwealth’s Attorney did so
before the court ruled on the motion. Id.
154
Id. “The people of Kentucky, in adopting the Racial Justice Act through
their elected representatives, have announced their complete rejection of the
death penalty as a tool of discrimination.” Id. at 17.
155
Id. “[T]he symbolism that Kentucky will not look the other way when
the death penalty is to be applied in a racially discriminatory manner is 97
percent of the value of the bill.” Id. at 17.
156
See Neal, supra note 72, at 14.
157
Id. at 14.
150
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the result of defense counsel’s ingenuity.”158 Many others
discerned a prosecutorial tilt toward, rather than away from, capital
charging; as one defender put it, “the prosecutor [issues death]
notices in each and every case where there is arguably an
aggravator.”159 Some public defenders’ interpretations of
prosecutors’ actions were, perhaps not surprisingly, cynical:
“Prosecutors will still find excuses to treat African American
defendants differently.”160 But at least one public defender noted a
different interpretation of an increase in death notices, one that had
been articulated by a Commonwealth’s Attorney in deciding to
seek death for three African-American defendants accused of
killing another African-American: “Not to seek death would
devalue the worth of the life of the victim because of his race.”161
On the subject of why the KRJA has not been used more,
public defenders’ views varied. Some chalked it up to a simple
lack of awareness of the Act.162 Others pointed out the practical
difficulties involved, for example, “[i]n most counties, there are
only a handful of eligible cases, far too few to draw any
conclusions—particularly given the lack of racial diversity in those
counties.”163 This comment suggests that, despite the KRJA’s
statement that decisions to seek death “in the Commonwealth” are
relevant to a particular defendant’s claim of a racial basis for
capital prosecution, public defenders understand county-level
statistics to be the benchmark.164 Another common theme was
discomfort at broaching the subject of racism: “In a clear majority
of counties, formally raising a Racial Justice Act motion would
have dire consequences on the success of the defense attorney in
158
Id.
Id. at 14-15.
160
Id.
161
Id. at 15.
162
Id. at 18-19.
163
Id.
164
Id.; telephone interview with David Barron, Assistant Public Advocate,
Frankfort, Kentucky, Oct. 31, 2004 (stating that public defenders view the
relevant statistical sample for a KRJA challenge to be prior prosecutions in the
county). See also KY. REV. STAT. ANN. §532.300(2), discussion of this provision
in Part II.B infra.
159
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that individual case and perhaps scores of other cases while the
prosecutor cools down from being called a racist in the local
paper.”165
The prevailing view among Kentucky prosecutors and judges is
that the KRJA has not had much impact on capital proceedings.166
Joseph Bouvier, a 22-year veteran of the Commonwealth’s
Attorney’s office in Fayette County, the state’s second-most
populous county, said that Kentucky prosecutors expected a “flood
of motions” after the KRJA passed but that the flood never
came.167 Philip Patton, a state circuit court judge who served for
eight years as Commonwealth’s Attorney in rural Barren County
said he was unaware of the KRJA actually barring a death sentence
in any case.168 Neither Mr. Bouvier nor Judge Patton believed that
the KRJA had any appreciable effect on prosecutors’ charging
decisions.169 Bouvier said he did not think that any
Commonwealth’s Attorneys had attempted to change the racial
make-up of their capital prosecutions, since they would then be
discriminating in a different direction, and creating bigger
problems for themselves.170 Bouvier opined that defense attorneys’
attempts to raise racial challenges to the death penalty have ebbed
165
Neal, supra note 72, at 17-19.
Telephone interview with Phillip R. Patton, Circuit Court Judge, 43rd
Judicial Circuit, Barren County, Kentucky (Nov. 26, 2003); Telephone interview
with Joseph T. Bouvier, Assistant Commonwealth’s Attorney, Fayette County,
Kentucky (Dec. 2, 2003).
167
Bouvier interview, supra note 166.
168
Patton interview, supra note 166.
169
Id.; Bouvier interview, supra note 166; Patton interview, supra note
166. In order to pursue a death sentence, a Kentucky prosecutor must file a
notice of intention to seek the death penalty, in effect an addendum to the
indictment. Telephone interview with David Harshaw, Assistant Public
Advocate, Oldham County, Kentucky (Jan. 14, 2005). This “death notice” must
identify the statutory aggravating factor(s) the prosecution intends to prove at
trial. Id. See also KY. REV. STAT. ANN. § 532.025(2) (Michie 2004). Even if not
seeking death, a prosecutor must file a notice of aggravation, also identifying the
statutory aggravating factor to be proved, in order to seek an “aggravated
sentence” of life imprisonment without parole or life imprisonment without
parole for twenty-five years. Harshaw interview, supra.
170
Bouvier interview, supra note 166.
166
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387
and been replaced by attempts to raise awareness of the possibility
of executing the innocent.171
A look at death-sentencing outcomes, however, suggests that
prosecutorial behavior has changed somewhat since the passage of
the KRJA and that the perceived tilt toward seeking death may be
real.172 In the five years before the KRJA, an average of 2.6 death
sentences were imposed per year; in the five years after the Act’s
passage, the figure was 2.8.173 There were twelve initial capital
prosecutions (as opposed to re-trials after a judge vacated an initial
sentence) in the five years after the Act’s passage, up from nine in
the five years before passage.174 Strikingly, the only two death
sentences imposed in Lexington in the five years following the
KRJA’s enactment involved white defendants with black victims,
and the only two death sentences in Louisville in this period
involved black-on-black murders.175
III. JUDICIAL RESPONSE: THE NEW JERSEY SUPREME COURT’S
PROPORTIONALITY REVIEW PROJECT
Like Kentucky, New Jersey has seen relatively little death
penalty activity in the modern era. The Garden State has executed
no one since 1963, when Ralph Hudson, a white man, was put to
death in the electric chair for murder.176 New Jersey currently has
fifteen death row inmates, of whom seven are black and eight are
171
Bouvier interview, supra note 166.
See Baldus & Woodworth, supra note 12, at 1471-72.
173
Id. at 1471.
174
Id. at 1472.
175
Id. Louisville, in Jefferson County, and Lexington, in Fayette County,
are Kentucky’s two largest cities. KENTUCKY DEPT. OF TOURISM, KENTUCKY
FACTS, at http://travel.ky.gov/facts_poplulations.aspx (last visited Jan. 17,
2005). Jefferson and Fayette Counties also have the highest percentages of
African-American residents in the state: 18.9 percent and 13.5 percent,
respectively. U.S. CENSUS BUREAU, KENTUCKY QUICKFACTS: JEFFERSON
COUNTY, at http://quickfacts.census.gov/qfd/states/21/21111.html (last visited
Jan. 17, 2005); U.S. CENSUS BUREAU, KENTUCKY QUICKFACTS: FAYETTE
COUNTY, at http://quickfacts.census.gov/qfd/states/21/21067.html (last visited
Jan. 17, 2005).
176
See Reimposition, supra note 15.
172
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white.177 The death row population is thus 46.6 percent black,
while the state’s black population is 13.6 percent.178
Historically, New Jersey law imposed more severe
punishments on blacks and Native Americans than on whites, even
providing summary proceedings for the execution of slaves
between 1714 and 1768.179 After 1768 slaves could still be put to
death for manslaughter, stealing a sum above five pounds, and any
other felony or burglary.180 In 1835 the state legislature, at the
request of the governor, passed a law prohibiting public executions
for blacks and whites alike.181 Since the beginning of the twentieth
century the death penalty has played a relatively minor role in New
Jersey criminal justice.182 In the period from 1900 to 1960, the
highest number of death sentences imposed in a single year was
sixteen, in 1930.183 In six of the years between 1900 and 1940,
New Jersey courts imposed fewer than two death sentences, and in
only four of the years between 1930 and 1960 were more than five
death sentences imposed in a single year.184
In the modern death penalty era, the New Jersey Supreme
Court, rather than the legislature, has acted most directly to
confront racial disparity in the state’s death penalty system, and the
court has done so chiefly in the context of proportionality
review.185 The state’s criminal code provides for proportionality
177
See Death Row U.S.A., supra note 69.
Id; U.S. CENSUS BUREAU, NEW JERSEY QUICKFACTS, at
http://quickfacts.census.gov/qfd/states/34000.html (last visited Jan. 17, 2005).
As with the Kentucky data, this comparison is not intended as evidence of
disparity in death penalty proceedings, but simply as a snapshot of the racial
makeup of death row and the state as a whole.
179
Reimposition, supra note 15, at 48-49.
180
Id. Although a gradual emancipation act was passed in 1804 (making
New Jersey the last northern state to outlaw slavery), complete abolition was not
effected until 1846. Eric Avedissian, Cape May’s Role in History: Pathway to
Freedom, at http://capemay.com/capemayarchives/slavery.html (last visited Jan.
17, 2005).
181
Reimposition, supra note 15, at 53-54.
182
Id. at 57-61.
183
Id. at 60-61.
184
Id. at 60.
185
See Bienen, supra note 12, at 207-8 (noting that “[i]n spite of or perhaps
178
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389
review of a death sentence “upon the request of the defendant” to
“determine whether the sentence is disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant.”186
Since the U.S. Supreme Court gave its imprimatur to Georgia’s
capital punishment statute in Gregg, two strains of proportionality
review have emerged in state high courts. One is substantive
proportionality review, which looks to whether the punishment of
death is excessive for a particular offense.187 The other is
procedural proportionality review, which examines whether a
particular defendant’s death sentence is excessive when compared
to factually similar cases.188 The New Jersey Supreme Court has
interpreted this second aspect of proportionality review as “a
means through which to monitor the imposition of death sentences
and thereby to prevent any impermissible discrimination in
imposing the death penalty.”189
because of the principled commitment of the New Jersey Supreme Court and its
Proportionality Review Project, the court was sharply criticized by state
legislators, the press, and the New Jersey Attorney General on capital
punishment issues”). In January 2003 the New Jersey General Assembly (the
larger house of the bicameral legislature) passed a death penalty study bill by a
vote of 70-8. Emilie Lounsberry, A Tide of Doubt Is Rising About the Death
Penalty, PHILADELPHIA INQUIRER, July 20, 2003. The study was to include an
examination of whether selection and sentencing of defendants in New Jersey
capital trials is arbitrary, unfair or discriminatory in any way. Id. After a
compromise move to delete any mention of the study leading to a moratorium
on the death penalty, the state senate passed the study bill 34-0. William Young,
Thumbs Down to Death Penalty Study: Governor Calls It Redundant, N.J.
LAWYER, Jan. 19, 2004, at 4. In January 2004 Governor James McGreevey, a
Democrat, vetoed the bill, emphasizing his support for the death penalty and
saying that there had already been enough studies. Id.
186
N.J. STAT. ANN. §2C:11-3e. (West 2003).
187
State v. Marshall, 613 A.2d 1059, 1067 (N.J. 1992).
188
Id. Substantive proportionality review is guided by the Cruel and
Unusual Punishments Clause of the Eighth Amendment and any analogous state
constitutional provisions. Henceforth, the term “proportionality review” in this
note will refer only to procedural proportionality review.
189
State v. Ramseur, 524 A.2d 188, 292 (N.J. 1987).
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A. The Genesis of Proportionality Review in New Jersey
The history of proportionality review in New Jersey begins
with the U.S. Supreme Court’s decision in Furman,190 which
prompted the New Jersey Supreme Court to declare the state’s
death penalty law unconstitutional in 1972.191 After a decade of
debate and deliberation, the legislature enacted a new death penalty
statute that included mandatory proportionality review.192 New
Jersey, along with twenty-five other states, carefully copied the
Georgia statute upheld in Gregg.193 Like the Georgia law, the 1982
New Jersey statute called for an automatic state supreme court
determination as to proportionality for every capital sentence.194
After the U.S. Supreme Court’s 1984 decision in Pulley v.
Harris195 that, Gregg notwithstanding, the Eighth Amendment did
not require procedural proportionality review, the New Jersey
legislature amended the statute to require such review only when
the defendant requests it.196 The amendment had no appreciable
impact, however, as the New Jersey Supreme Court continued to
conduct procedural proportionality review on the assumption that
almost all capital defendants would request it.197 The New Jersey
Supreme Court finally issued an opinion upholding the
constitutionality of the death penalty statute in 1987,198 but it
invalidated twenty-seven death sentences before affirming one
190
See supra text accompanying notes 28-30.
Latzer, supra note 12, at 1196.
192
Id; 1982 N.J. Laws 555, 558 (providing that convictions resulting in
death sentences may be appealed to the New Jersey Supreme Court, which shall
“determine whether the sentence is disproportionate to the penalty imposed”).
193
Latzer, supra note 12, at 1196. See also N.J. STAT. ANN. § 2C:11-3(e)
(West 2004).
194
Latzer, supra note 12, at 1196-97.
195
465 U.S. 37 (1984).
196
Latzer, supra note 12, at 1197; 1985 N.J. Laws 1935, 1940 (stating that
the court, once the defendant has requested a review, shall examine “whether
the sentence is disproportionate to the penalty imposed in similar cases”).
197
Latzer, supra note 12, at 1197; State v. Ramseur, 524 A.2d 188 (N.J.
1987).
198
See Ramseur, 524 A.2d at 202 (finding that the death penalty statute did
not violate the state or the federal constitutions).
191
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under the “new” law in 1991.199
In upholding the death penalty statute, the court emphasized
that the proportionality review process was to be “an important
procedural mechanism to safeguard against the arbitrary and
capricious imposition of the death penalty.”200 The court
established at the outset that its system of proportionality review
would not simply rely on traditional legal review, but would also
seek the participation of criminal justice experts and perhaps even
experts from disciplines outside the law.201 The court
acknowledged that the death penalty statute provided little
guidance in crafting a proportionality review system, providing
simply that “the Supreme Court shall . . . determine whether the
sentence is disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant.”202
Looking forward, the court identified some proportionality
review problems with which it would have to grapple.203 The first
was determining the universe of cases within which the
proportionality comparison would be made: should the focus be
countywide or statewide, and should the universe include only
actual death-sentenced cases or all cases in which the state could
have sought death?204 The court recognized that this last question
raised the issue of whether to consider possible misuse of
prosecutorial discretion in seeking death.205
The court faced another challenge in determining how to select
199
Latzer, supra note 12, at 1197. In eighteen successive decisions between
1987 and 1990, the court vacated or reduced a death sentence or reversed a
capital murder conviction on the basis of legal error. Baldus & Woodworth,
supra note 12, at 1462 n.195.
200
Ramseur, 524 A.2d at 294. See also David Weisburd, Good for What
Purpose? Social Science, Race, and Proportionality Review in New Jersey, in
SOCIAL SCIENCE, SOCIAL POLICY, AND THE LAW 258 (Patricia Ewick et al., eds.,
1999).
201
Ramseur, 524 A.2d at 293.
202
Ramseur, 524 A.2d at 292 (quoting N.J. STAT. ANN. § 2C:11-3(e) (West
2004)).
203
Ramseur, 524 A.2d at 293.
204
Id.
205
Id.
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similar cases.206 It identified “sexual mutilation,” “torture,” and
“multiple victims” as possible categories for comparison but
worried that categories such as “domestic,” “execution style,” and
“depravity of mind” might be too broad or ambiguous to allow any
real comparison.207 Displaying its openness, the court wrote, “[w]e
anticipate and welcome suggestions regarding which
criminological, sociological, and statistical models are appropriate
for analyzing the similarity of crimes and sentencing.”208
The court also recognized that, even after identifying similar
cases, it would face the problem of determining the defendants’
“relevant underlying characteristics.”209 The court stated that the
statutory aggravating and mitigating factors would provide a
starting point.210 However, the court also noted that “other factors
206
Id. (quoting N.J. STAT. ANN. § 2C:11-3(e) (West 2004)).
524 A.2d at 293.
208
Id.
209
Id.
210
N.J. STAT. ANN. § 2C:11-3 (c)(4) (West 2004). The aggravating factors
that may be found by the jury or the court are:
(a) The defendant has been convicted, at any time, of another murder.
For purposes of this section, a conviction shall be deemed final when
sentence is imposed and may be used as an aggravating factor
regardless of whether it is on appeal; (b) In the commission of the
murder, the defendant purposely or knowingly created a grave risk of
death to another person in addition to the victim; (c) The murder was
outrageously or wantonly vile, horrible or inhuman in that it involved
torture, depravity of mind, or an aggravated assault to the victim; (d)
The defendant committed the murder as consideration for the receipt, or
in expectation of the receipt of anything of pecuniary value; (e) The
defendant procured the commission of the murder by payment or
promise of payment of anything of pecuniary value; (f) The murder was
committed for the purpose of escaping detection, apprehension, trial,
punishment or confinement for another offense committed by the
defendant or another; (g) The murder was committed while the
defendant was engaged in the commission of, or an attempt to commit,
or flight after committing or attempting to commit murder, robbery,
sexual assault, arson, burglary, kidnapping, carjacking or the crime of
contempt in violation of N.J.S. 2C:29-9b.; (h) The defendant murdered
a public servant, as defined in N.J.S. 2C:27-1, while the victim was
engaged in the performance of his official duties, or because of the
victim’s status as a public servant; (i) The defendant: (i) as a leader of a
207
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such as race, sex, and socioeconomic status . . . the relationship
between the defendant and victim, whether defendant pleaded
guilty or not guilty, and the race and sex of the victim” were
possibly appropriate factors to consider.211 Finally, the court
candidly acknowledged the paradox inherent in the proportionality
review process: although the “paramount theme” of the criminal
justice system is that the punishment should fit the crime, not the
criminal, the U.S. Supreme Court has categorically rejected “blind
uniformity” in the sentencing of capital defendants.212
B. A Statistical Study of New Jersey Capital Cases
One year later, the New Jersey Supreme Court made good on
its promise to seek outside assistance: in July 1988 the court
appointed David Baldus, who had led the McCleskey study, as
Special Master to assist with the creation of a system of
proportionality review.213 Baldus spent three years collecting data
and developing the methodology he would recommend in his final
report.214 One year into the project, the state Attorney General
narcotics trafficking network as defined in N.J.S. 2C:35-3 and in
furtherance of a conspiracy enumerated in N.J.S. 2C:35-3, committed,
commanded or by threat or promise solicited the commission of the
murder or (ii) committed the murder at the direction of a leader of a
narcotics trafficking network as defined in N.J.S. 2C:35-3 in
furtherance of a conspiracy enumerated in N.J.S. 2C:35-3; (j) The
homicidal act that the defendant committed or procured was in
violation of paragraph (1) of subsection a. of N.J.S. 2C:17-2 [causing
“an explosion, flood, avalanche, collapse of a building, release or
abandonment of poison gas, radioactive material or any other harmful
or destructive substance”]; (k) The victim was less than 14 years old; or
(l) The murder was committed during the commission of, or an attempt
to commit, or flight after committing or attempting to commit,
terrorism pursuant to section 2 of P.L. 2002, c. 26 (C. 2C:38-2).
N.J.STAT. ANN. 2C:11-3(c)(4) (2004).
211
Ramseur,524 A.2d at 294.
212
Id. See Woodson v. North Carolina, 428 U.S. 280 (1976) (holding
mandatory death sentence for conviction of first-degree murder unconstitutional
under the Eighth Amendment).
213
State v. Marshall, 613 A2d 1059, 1063 (N.J. 1992).
214
Id.
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applied to the Court for a preliminary determination of the
appropriate universe of cases to be used in proportionality
review.215 The Attorney General argued that, in keeping with a
majority of other jurisdictions’ proportionality review systems,216
the only appropriate universe would be one composed exclusively
of cases in which a death sentence had been imposed.217 Baldus, on
the other hand, recommended that the universe also include
homicide cases that he determined to be clearly death-eligible but
in which prosecutors had chosen not to seek the death penalty.218
Because proportionality review is essentially an exercise in
comparing similar cases, deciding which cases are sufficiently
similar to include in a universe becomes crucially important.219
The court declined to define the appropriate universe at that point,
averring that its eventual decision would be better informed by
awaiting Baldus’s final report and the arguments of interested
parties (chiefly the Attorney General and the state Office of the
Public Defender).220
215
In re the Proportionality Review Project, 585 A.2d 358, 358-59 (N.J.
1990).
216
Id. at 359.
Id. As of July 1990, there had been 33 death sentences in 117 deathpenalty trials. Id.
218
Id.
219
See Dale Jones, The Office of the Public Defender, Race and
Proportionality Review in New Jersey: The View from the Back of the Bus, 26
SETON HALL L. REV. 1469, 1471 (1996). A small universe of cases with highly
similar facts would make defense claims of disproportion difficult, since it
would be hard for a defendant to distinguish himself from his death-sentenced
peers in such a universe. A larger universe that included cases not prosecuted
capitally would make defense claims of disproportion easier, since it would be
possible to point to defendants who also committed murders of roughly equal
aggravation but who did not face the death penalty. Considering the same issue a
few years before, a justice of the Nebraska Supreme Court offered an analogy in
support of a broad universe of cases: “If one wants to determine whether
individuals are being discriminated against in public transportation, one does not
merely look at those who are required to sit in the back of the bus and conclude
that since everybody in the back of the bus looks alike, there is no
discrimination.” State v. Palmer, 399 N.W.2d 706, 752 (Neb. 1986) (Krivosha,
C.J., concurring in part and dissenting in part).
220
Proportionality Review Project, 585 A.2d at 360.
217
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In his final report, Baldus provided the court with a database
comprising 246 cases and more than 400 factors that detailed the
social and criminal backgrounds of the offenders and their victims,
the contexts of their crimes, and the procedural and legal issues
that Baldus deemed relevant to capital cases.221 He provided the
court with three distinct statistical methods for assessing the
offenders’ culpability, or blameworthiness, a major factor in
determining the proportionality of their sentences.222 Baldus also
reported that he found race effects in the course of developing his
statistical models: both the race-of-defendant and race-of-victim
variables showed statistically significant correlations with death
sentences.223 It appeared that black defendants were at a greater
221
Weisburd, supra note 200, at 263.
State v. Marshall, 613 A.2d 1059, 1077-78 (N.J. 1992).
223
Weisburd, supra note 200, at 264-65. The Court had not actually
requested an analysis of arbitrariness and discrimination in the state’s capital
charging and sentencing system.
224
Id. at 265-66.
225
Id. (quoting Baldus, Final Report at 102).
226
Id. at 266 (quoting Baldus, Final Report at 103).
227
Id. at 268.
228
613 A.2d 1059. The New Jersey Supreme Court had already affirmed
Marshall’s conviction and death sentence on direct appeal in State v. Marshall,
586 A.2d 85 (1991) (“Marshall I”). The Court reserved the proportionality
review issue, and it was briefed and argued separately. 613 A.2d at 1062-63. In
this note, “Marshall” refers to the proportionality review appeal, which the
Court refers to as “Marshall II.”
229
Id.
222
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risk of receiving death sentences than similarly situated white and
Hispanic defendants.224 The data suggested that, “on average, after
controlling for the aggravation level of the cases, black defendants
may have a 19 percentage point higher risk . . . of receiving a death
sentence than do other defendants.”225 Furthermore, the data
suggested that “on average, cases with a white victim may have a
14 percentage point or higher risk of advancing to a penalty trial
[i.e., being prosecuted as a capital murder case and producing a
conviction] than do other cases.”226 Baldus cautioned, however,
that these findings were strictly preliminary because discrimination
was not the primary target of his analysis.227
C. The First Use of Proportionality Review
In State v. Marshall,228 a case involving a white insurance
agent who hired a hit man to kill his wife (who was also white), the
court had its first opportunity to apply Baldus’s newly-gathered
data.229 But even before the court could draft an opinion, the state
legislature stepped into the universe-of-cases debate on the
Attorney General’s side.230 Following oral argument in Marshall,
the legislature amended the Capital Punishment Act to provide that
“proportionality review . . . shall be limited to a comparison of
similar cases in which a sentence of death has been imposed.”231
The Attorney General then filed a memorandum suggesting that
this amendment be applied to Marshall’s proportionality review
230
613 A.2d at 1063.
Id.; N.J. STAT. ANN. § 2C:11-3(e) (West 2004).
232
613 A.2d at 1063.
233
N.J. STAT. ANN. § 2C:11-3(e) (West 2004).
234
613 A.2d at 1063, 1131. See U.S. CONST. art. I, § 9, cl. 3 (“No Bill of
Attainder or ex post facto Law shall be passed”); art. I, § 10, cl. 1 (“No State
shall . . . pass any . . . ex post facto law”); N.J. CONST. art. IV, § 7 par. 3 (“The
Legislature shall not pass any . . . ex post facto law”).
231
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appeal.232 The court noted that applying the amendment—which
was to “take effect immediately”233—to pending appeals would
implicate the federal Constitution’s ex post facto clause and the
analogous clause of the New Jersey Constitution.234 Citing the long
pendency of Marshall’s appeal (and displaying its independence),
the court decided to apply pre-amendment law and decide for itself
what universe of cases to use.235 After assessing the strengths and
weaknesses of the competing approaches, the court decided that
Baldus’s better served its need “to assess disproportionality in
terms of the crime and the defendant.”236
Among defendant Robert Marshall’s claims was a structural
challenge to the state’s death penalty scheme—reminiscent of
Warren McCleskey’s—based on the Special Master’s finding of a
correlation between race and death sentences.237 Marshall pointed
out that at the midrange culpability level (neither the most
aggravated murders nor the least aggravated) there was a 64
percent higher risk that a black defendant would be sentenced to
death than a defendant of any other race.238 Furthermore, at this
midrange level white-victim cases were 1.4 times more likely to
235
Id. at 1064. In addition to the Special Master’s report, the Court had
before it a competing report, commissioned by the Attorney General and
produced by statistician Herbert I. Weisberg. Id. at 1086. Dr. Weisberg proposed
a more modest role for statistical analysis of past decisions, recommending that
the universe of cases be limited to those capital trials in which a judge or jury
had found at least one statutory aggravating factor, and limiting the independent
variables to just the statutory aggravating factors (leaving out mitigating factors
and extra-legal factors such as race). Id. This approach would shrink the
universe of cases and make it impossible to assess what role the race of the
defendant or victim played, if any. Id.
236
Id. at 1088 (internal quotation marks omitted).
237
Id. at 1110. The New Jersey court found standing for Marshall to
complain of race-influenced death sentencing: “Defendant surely has a right to
raise a structural challenge to the constitutional fairness of the New Jersey
Capital Punishment Act. A death-penalty statute that systematically
discriminates on the basis of race of the victim or race of the defendant menaces
the institutions and foundation of a free democratic State.” Id. at 1109 (internal
quotation marks omitted). Similarly, the McCleskey Court found McCleskey had
standing to raise an Equal Protection claim based on the race-of-victim disparity,
since a state would violate the Equal Protection clause by enforcing its criminal
laws on an unjustifiable standard such as race. See supra note 45.
238
Id.
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advance to a penalty trial than other cases.239 Noting that race
effects are undetectable at the highest and lowest culpability levels,
Marshall asserted that when juries are faced with real choices, that
is, when crimes are neither so horrendous that the death penalty
seems clearly appropriate to jurors, nor so borderline that the death
penalty seems clearly excessive, race stands out as a predictive
factor.240
When the New Jersey Supreme Court finally decided Marshall,
it repudiated the McCleskey Court’s assertion that racial disparities
are inevitable in the American criminal justice system, proclaiming
that “New Jersey’s history and traditions would never countenance
racial disparity in capital sentencing.”241 The court did not,
however, accept Special Master Baldus’s evidence of racial
disparity in sentencing as conclusive.242 Although the court found
“disturbing” the Special Master’s “suggestion” that there may be a
discrepancy in capital sentencing rates based on race, it did not
find evidence of “constitutionally-significant race-based disparities
in sentencing.”243 The court contrasted the evidence of racial
disparity in McCleskey, which issued from a “more extensive set of
relationships between the statistical variables,” with the evidence
in the Special Master’s report, which presented only “the rate at
which black defendants are sentenced to death and the rate at
which cases with white victims proceed to a penalty trial.”244 The
Marshall data did not show the death-sentencing rate for race-ofvictim and race-of-defendant combinations, as the McCleskey data
had done.245 Furthermore, the court pointed out that, despite
apparent race-of-defendant disparities at the midrange culpability
level, the same data showed no race-of-victim disparities in the
penalty trial decisions.246
Finally, the court emphasized Baldus’s observation that the
239
240
241
Id.
Id.
Marshall, 613 A.2d at 1108-9. See quotation from Justice Powell, supra
note 61.
242
243
244
245
246
Id. at 1108. See supra text accompanying notes 223-26.
Marshall, 613 A.2d at 1108.
Id. at 1110.
State v. Bey, 645 A.2d 685, 712 (N.J. 1994).
Marshall, 613 A.2d at 1111.
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race-of-victim effect observed in cases advancing to penalty trial is
less statistically stable (and therefore more questionable) than the
race-of-defendant effect in death sentences.247 In short, the fact that
Baldus had not constructed his statistical analysis specifically to
test for race effects, combined with the small universe of cases he
employed, led the court to refrain from stating definitively that
New Jersey’s death penalty statute had a racially discriminatory
effect.248 Comparing the case before it with Justice Brennan’s
characterization of McCleskey, the court found that it did not yet
confront a record in which “the statistical evidence relentlessly
documents the risk that [the defendant’s] sentence was influenced
by racial considerations.”249
D. Post-Marshall Proportionality Review Cases
In the next three proportionality appeals it heard in 1994 and
1995—State v. Bey,250 State v. Martini,251 and State v.
DiFrisco252—the court continued to express concern about
findings that indicated some degree of racial disparity. In Bey the
defendant was a black man sentenced to death for the sexual
assault and murder of a black woman.253 Like Marshall, Bey raised
a structural challenge to the New Jersey capital system on the
ground that race operated as an impermissible factor in
prosecutors’ charging decisions and juries’ sentencing decisions.254
The Association of Criminal Defense Lawyers of New Jersey
and the New Jersey State Conference of NAACP Branches, as
amici curae supporting Bey’s position, attempted to ameliorate the
statistical deficiencies the Court had found in Marshall’s claim.255
They evaluated the interaction between race-of-defendant and
247
Id.
Id.
249
Id. at 1111-12 (quoting McCleskey, 481 U.S. at 328 (Brennan, J.,
dissenting)).
250
645 A.2d 685 (N.J. 1994).
251
651 A.2d 949 (N.J. 1994).
252
662 A.2d 442 (N.J. 1995).
253
645 A.2d 685.
254
Bey, 645 A.2d at 689, 715.
255
Id. at 713.
248
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race-of-victim combinations and assessed the influence of nonstatutory factors such as socio-economic status.256 In an attempt to
include enough cases for a statistically reliable comparison, the
amici expanded Bey’s culpability level to embrace twenty-three
cases.257 They then pointed out that in the expanded culpability
level, 80 percent of black defendants (eight of ten) but only 15
percent of non-black defendants (two of thirteen) received death
sentences,258 and defendants who killed whites were more likely to
receive death sentences than defendants who killed non-whites.259
The court rejected Bey’s claim, finding that the statistics did
not support it.260 The court objected to the expansion of Bey’s
culpability level because it failed to “achieve the underlying
purpose of creating culpability levels consisting of similar
cases.”261 The fundamental problem, the court observed, was that
the New Jersey case universe still contained too few cases to make
analysis reliable.262 The court acknowledged that it was “vexing”
to wait for more data, but stated that “[t]he inescapable fact is that
we lack enough cases to conclude with any degree of statistical
reliability whether race is working impermissibly in death
sentencing.”263
The defendants in Martini and DiFrisco (both white) raised the
same claim as Bey.264 The court rejected Martini’s claim by
referring to its holding in Bey,265 and it rejected DiFrisco’s claim
by referring to its holdings in Martini, Bey, and Marshall.266 Eight
years after its inception, the proportionality review project had yet
to provide relief to a single death-sentenced defendant in New
256
Id.
Id.
258
Id.
259
Id. at 715.
260
Bey, 645 A.2d at 711-12.
261
Id. at 714.
262
Id. at 714.
263
Id. at 712.
264
J. Randy Sawyer, Comment, The Last Line of Defense: A Comparative
Analysis of United States Supreme Court and New Jersey Supreme Court
Approaches to Racial Bias in the Imposition of the Death Penalty, 7 SETON
HALL CONST. L.J. 663, 704 n.225 (1997).
265
Martini, 651 A.2d at 987.
266
DiFrisco, 662 A.2d at 473.
257
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Jersey.
E. The New Jersey Supreme Court Reconsiders Proportionality
Review
David Baldus’s tenure as Special Master ended with the
proportionality appeal in Bey, and the state Administrative Office
of the Courts (AOC) then took responsibility for producing
ongoing analyses for proportionality review.267 In January 1996 the
AOC released updated data, including thirty-two new cases, in
preparation for proportionality review in State v. Harris.268 David
Weisburd, a statistics expert retained by the AOC to analyze this
data, reported that a black-defendant race effect had achieved
statistical significance as a predictor of death sentences in penalty
trials.269 Thus, the race effect that could have been dismissed as a
mere statistical artifact in Baldus’s study now had stronger legs to
stand on.270 Although striking, this development did not turn the
tide in the argument between the Public Defender and the Attorney
General about racial disparity.271 Instead, each side argued its own
interpretation with renewed vigor.272 The Public Defender claimed
that the AOC report “provided relentless and conclusive evidence
of prejudice” in death sentencing, while the Attorney General
challenged the statistical models’ ability to “measure what they
purport to measure.”273
In 1996 there were two deaths that altered the course of
proportionality review.274 The first was that of Chief Justice Robert
N. Wilentz, under whose leadership the court undertook the
proportionality review project.275 Republican Governor Christine
Todd Whitman appointed Attorney General Deborah Poritz to
267
268
269
270
271
272
273
274
275
Weisburd, supra note 200, at 277.
662 A.2d 333 (N.J. 1995).
Jones, supra note 219, at 1475.
See discussion infra Part III.C.
See Weisburd, supra note 200, at 277.
Id.
Id. at 280.
See Bienen, supra note 12, at 186; Sawyer, supra note 264, at 704.
See Bienen, supra note 12, at 136.
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replace Wilentz as Chief Justice.276 The proportionality review
project would henceforth operate under the supervision of someone
who, at least in her institutional role, was one of its chief critics.277
The second death was that of Joseph Harris, the defendant in State
v. Harris, who suffered a stroke on the eve of his hearing.278 The
case was dismissed as moot, and the battle over the AOC report
was postponed.279
The battle was joined in the proportionality appeal of State v.
Loftin,280 which concerned a black defendant convicted of killing a
white man in the course of robbing him. The court appointed a new
Special Master, retired Appellate Division Judge Richard S.
Cohen, to review the significance of the AOC’s data for Loftin’s
case.281 Cohen, assisted by Princeton University statistician John
Tukey, reported to the court in January 1997.282 Cohen and Tukey
had created three new statistical models, each including the race of
the defendant as a variable in a set of no more than ten variables,
the rest of which were statutory aggravating or mitigating
factors.283 Cohen reported that “the statistical evidence does not
prove the defendant’s assertions of racial bias in penalty-trial
verdicts, [but] neither does it prove that the system operates
without bias.”284
Just as the state had retained an expert to counter Special
Master Baldus in past appeals, the defense in Loftin retained an
276
Id. at 209 n.284.
See discussion infra Part III.C.
278
Sawyer, supra note 264, at 704.
279
Id.
280
724 A.2d 129 (N.J. 1999).
281
See Sawyer, supra note 264, at 705.
282
State v. Loftin, 724 A.2d 129, 154 (1999). See also Weisburd, supra
note 200, at 280.
283
Id.
284
724 A.2d at 154 (quoting Richard S. Cohen, Report to the Supreme
Court of New Jersey (Jan. 27, 1997)). In its February 1999 Loftin decision, the
court reviewed the raw data on capital sentencing and noted that prosecutors
sought death sentences against 36 percent (73/203) of the black defendants and
47 percent (74/159) of the non-black defendants, while juries imposed death
sentences on 38 percent (28/73) of the black defendants and 30 percent (22/74)
of the non-black defendants. Id. at 155.
277
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expert to counter Special Master Cohen.285 Defense statistician
Paul Allison offered alternative statistical models that added a
white-victim variable to the three Cohen-Tukey models, with the
result that two of these models showed a statistically significant
race effect.286 But the court, evincing considerably more
skepticism about statistical analysis than it had in previous cases,
dismissed Allison’s findings as “infected by [Baldus’s] suspect
culpability ratings and the small size of the database.”287 In
contrast, the court noted with approval Cohen’s determination that
none of the results drawn from the AOC data could be considered
statistically significant, including the “apparent racial disparity in
penalty-phase verdicts.”288 Harkening to the standard that the
Marshall court had plucked from Justice Brennan’s McCleskey
dissent, the court concluded that “the record in this case convinces
us that defendant has not ‘relentlessly document[ed] the risk’ of
racial disparity in the imposition of the death penalty.”289
Along with its rejection of Loftin’s appeal, the court appointed
yet another Special Master to “examine the proportionality review
methodology used by the Court since Marshall . . . and to test the
assumptions on which the current system is based.”290 Again the
court appointed an Appellate Division judge, this time Judge David
Baime, to be the new Special Master.291
In his initial report of April 1999, Baime recommended
retaining the “clearly death-eligible” universe of cases for
proportionality review, ignoring the legislature’s 1992 amendment,
just as the court had done.292 Baime also recommended the
appointment of a retired judge as standing Special Master to
supervise the proportionality review process.293 In keeping with the
court’s desire to streamline the system, Baime recommended
285
286
287
288
289
290
291
292
293
Id. at 158.
Id.
Id.
Id. at 156.
Id. at 160.
Id. at 135.
In re Proportionality Review Project, 735 A.2d 528, 532 (N.J. 1999).
Id. at 534.
Id.
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consolidating proportionality review with direct appeals.294 The
court accepted these recommendations.295
Most significantly, Baime recommended abandoning the
complex statistical analysis that Baldus had championed, citing the
instability of the statistical models and the small projected increase
in the case database.296 The court acknowledged these
shortcomings: “[T]here are too many independent variables
(degree of victimization, extent of premeditation, nature of
offense) in relationship to the relatively few dependent variables
(death verdicts) to reach a reliable conclusion about the effect of
the independent variables.”297 While the court agreed to abandon
the analysis Baldus had instituted, it recognized that “[s]tatistical
modeling certainly will be needed to examine systemic
disproportionality.”298 The court directed the Special Master to
work with his consultants, Professors David Weisburd and Joseph
Naus, to create a more reliable model.299
In December 1999, Baime issued the second part of his
report.300 Whereas his initial report’s recommendations were aimed
at individual proportionality review (the effort to ensure that
individual death sentences are not disproportionately harsh in the
universe of similar cases), Baime’s second report focused on
systemic proportionality review (the effort to ensure that death
sentences statewide do not fall disproportionately on ethnic and
racial minorities.)301 He recommended a process specifically for
monitoring the presence of racial discrimination in the
administration of the death penalty, a process that would combine
three statistical techniques in an effort to isolate race effects.302
294
295
296
297
298
299
300
735 A.2d 528 at 543.
Id. at 548.
Id. at 534-35.
Id. at 541.
Id.
Id.
In re Proportionality Review Project (II), 757 A.2d 168, 169 (N.J.
2000).
301
Id.
Id. at 172-73. These techniques are bivariate analysis, which looks at
just two variables, race and sentence; multiple regression analysis, which
isolates the individual effects of many independent variables on the sentence;
302
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405
Baime asserted that creating a statistically stable, reliable
model to test for race would be easier than creating such a model
for individual proportionality.303 This was because he and his
consultants would need to include in their model only those
variables that were related to a particular outcome (for example,
conviction or death sentence) and to race; they would not have to
include the wide variety of variables relevant to the culpability of
each offender.304 The court concluded that the variables must
include non-statutory factors, and approved Baime’s plan to survey
judges with experience in capital cases to select the non-statutory
factors most relevant to death-sentencing decisions.305 In an effort
to make racial coding more reflective of reality, the court also
accepted the Special Master’s recommendation to code both
defendants and victims as white, black, Latino, Asian, and other,
abandoning Baldus’s system of coding defendants as black or nonblack and victims as white or non-white.306
Finally, the court reiterated the standard for establishing
disproportionality: a defendant must “relentlessly document the
risk of racial disparity in the imposition of the death penalty.”307
The court also held that, to meet this standard, a defendant would
have to show “converging outcomes produced by the application
of a variety of techniques,” specifically, the three techniques
Baime proposed.308 Considering the variation in results that
different statistical analyses had produced in previous cases and
the susceptibility of these results to differing interpretations, the
court set the bar quite high.309
and case-sorting analysis, which looks at which combination of aggravating and
mitigating factors were involved in cases in the universe, then identifies which
combinations showed strong racial disparities. Id. at 172-77.
303
Id. at 173-74.
304
Id.
305
Id. at 175.
306
Id.
307
Id. at 178.
308
Id.
309
The Court’s opinion was written by Chief Justice Poritz, who appears to
have accepted the importance of the proportionality review project. (“The
importance of understanding whether racial discrimination infects our system of
capital punishment requires that we make this effort.”) In re Proportionality
Review Project (II), 757 A.2d 168, 172 (N.J. 2000). However, Chief Justice
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In accepting the Special Master’s Report, the court
simultaneously decided three proportionality review cases.310
Citing Baime’s finding that there was no consistent statistical
evidence of race-of-victim or race-of-defendant effects, the court
concluded, “[W]e cannot find that race has operated as an
impermissible factor in the imposition of the death penalty.”311
Thus the court affirmed all three sentences.312
In 2001 Baime delivered his Report to the Supreme Court
Systemic Proportionality Review Project.313 In it, he stated, “[W]e
discern no sound basis from the statistical evidence to conclude
that the race or ethnicity of the defendant is a factor in determining
which cases advance to a penalty trial and which defendants are
ultimately sentenced to death.”314 Baime noted that all three
analytical techniques produced convergent results, which bolstered
his and his consultants’ confidence in the result.315 As for the race
of the victim, Baime allowed that the results were “more
equivocal.”316 Although he found no appreciable difference in
sentencing rates between defendants who killed whites and
defendants who killed minorities, he did find “unsettling” evidence
that cases involving white victims were more likely to advance to
penalty trials (i.e., to be pursued by prosecutors as capital cases
and to produce convictions) than cases involving black victims.317
Baime attributed this finding to county variance—the fact that a
Poritz also appears to have brought some skepticism about statistical analysis
with her from the Attorney General’s office (“We have learned that statistical
modeling for [sorting out the relationship between discretion and the race of
defendants or victims] is largely untested and that its usefulness is uncertain.”)
Id.
310
State v. Harris, 757 A.2d 221 (N.J. 2000); State v. Feaster, 757 A.2d
266 (N.J. 2000); State v. Morton, 757 A.2d 184 (N.J. 2000).
311
757 A.2d 168 at 179.
312
State v. Harris, 757 A.2d 221, 244 (N.J. 2000); State v. Feaster, 757
A.2d 266, 284 (N.J. 2000); State v. Morton, 757 A.2d 184, 203 (N.J. 2000).
313
D. Baime, Report to the Supreme Court Systemic Proportionality
Review Project, at http://www.judiciary.state.nj.us/baime/baimereport.pdf (last
visited July 28, 2004) [hereinafter Baime Report].
314
Id. at 4.
315
Id.
316
Id.
317
Id. at 4-5.
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disproportionately large number of minority-victim cases are tried
in counties with the lowest overall rates of cases progressing to the
penalty phase of the trial.318 When county variance is accounted
for, Baime concluded, “the evidence does not suggest that the race
of the victim plays an important role in determining which deatheligible cases advance to the penalty phase.”319
F. Effects of the Proportionality Review Project
Between 1987 and 2001, the New Jersey Supreme Court
rendered a dozen proportionality review decisions in which it
found every death sentence proportionate, both individually and
systemically.320 During this period, the rate at which New Jersey
juries imposed death sentences dropped significantly, to an average
of about two per year.321 While many factors may be presumed to
account for the drop, some criminal defense lawyers in New Jersey
believe that the difficulty in making a death sentence “stick” has
discouraged some prosecutors from seeking it.322 Not surprisingly,
the Proportionality Review Project has inspired polarized
318
Id. at 5.
Baime Report, supra note 313, at 5-6.
320
Latzer, supra note 12, at 1199. There has been no systemic
proportionality review of a death sentence in the New Jersey Supreme Court
since 2001. However, in 2002, the court found the death sentence of Peter
Papasavvas, a white man, disproportionate. State v. Papasavvas, 790 A.2d 798,
800 (2002). The court’s decision was based on individual proportionality review
(also known as procedural proportionality review), which concerns whether a
sentence is unduly harsh compared with the sentences imposed in similar
crimes, not systemic proportionality review, which concerns (among other
things) whether statewide racial disparity in capital proceedings exists. Id.; see
also text accompanying notes 187-89.
321
See In re Proportionality Review Project (II), 757 A.2d 168, 176 (noting
that in the five years before 2000, jurors had sentenced only ten defendants to
death).
322
E-mail message from Karl Keys, Assistant Deputy Public Defender,
Paterson, N.J., to Alex Lesman (Oct. 21, 2003) (on file with the Journal of Law
and Policy). This view accords with that of scholars David Baldus and George
Woodworth, who assert that “the most important feature of New Jersey’s
proportionality review system is its feedback mechanism with the prosecutorial
community, which, over time, appears to have developed a fairly conservative
approach to capital charging.” Baldus & Woodworth, supra note 12, at 1461-62.
319
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reactions, including the strongly negative reactions of some New
Jersey governors, attorneys general, and legislators.323 Moreover,
some scholars have lambasted the project324 while others have
defended it.325 Regardless of how one views the undertaking,
however, it seems fairly clear that the heyday of systemic
proportionality review in New Jersey is over. With former
Attorney General Deborah Poritz at the helm, the court has begun
to scale back Baldus’s elaborate statistical models, which more
often showed race effects than the models Baime substituted.326 In
addition, Baime’s 2001 Special Master’s report, identifying county
variance as the source of what little racial disparity he found,
shifted the focus of systemic proportionality from the potential
racial prejudice (conscious or unconscious) of prosecutors and
juries to the more practical issue of how prosecutorial resources are
used.327
323
See Bienen, supra note 12, at 207-208.
See, e.g., Latzer, supra note 12, at 1162 (contending that “comparative
proportionality review is constitutionally unwarranted, methodologically
unsound, and theoretically incoherent, and, therefore, should be abolished”).
325
See, e.g., Evan J. Mandery, In Defense of Specific Proportionality
Review, 65 ALB. L.REV. 883, 925 (2002) (asserting that “New Jersey experience
shows . . . that specific proportionality review is workable and useful”).
326
Cf. supra text accompanying notes 223-26 and supra text accompanying
notes 313-319.
327
See Baime Report, supra note 313, at 5. The report revealed that the
three urban counties with the highest number of death-eligible cases (Camden,
Essex, and Union) had the lowest rate of advancement to death penalty trials (21
percent). See Joseph R. McCarthy, Note, Implications of County Variance in
New Jersey Capital Murder Cases: Arbitrary Decision-Making by County
Prosecutors, 19 N.Y.L. SCH. J. HUM. RTS. 969, 980 (2003). Although county
variance may be driven in part by racial prejudice, the number of murders a
county must deal with and the high cost of prosecuting a capital case are
undeniably important factors in a district attorney’s decision-making. Whether
county variance constitutes an arbitrary geographical disparity, and therefore
violates equal protection, is open to argument, and could be the next front on
which death penalty opponents attack the state’s capital punishment scheme. See
id. at 983-84 (suggesting that significant geographic variance in rates at which
prosecutors seek death could run afoul of the Constitution’s equal protection and
cruel and unusual punishments provisions). In the summer of 2004 the New
Jersey Attorney General’s office began reviewing and updating its 15-year-old
Guidelines for the Designation for Capital Prosecutions, with the participation of
county prosecutors, in an effort to promote greater uniformity in seeking the
324
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409
IV. ANALYSIS
Neither the Kentucky Racial Justice Act nor the New Jersey
Supreme Court’s Proportionality Review Project could be deemed
an unqualified success by its proponents. Indeed, there exists no
body of case law illustrating that either state action has provided
relief to any capital defendants.328 Nor is there a body of research
to show that racial disparity in capital proceedings has been
eliminated in either state.329 Yet there have been changes in the
ways in which Kentucky and New Jersey administer their
respective death penalty systems in recent years, and these changes
are at least arguably attributable to these states’ responses to the
specter of racial discrimination.
A. Evaluating the Impact of the Kentucky and New Jersey
Responses
A few tentative findings emerge from examining the Kentucky
Racial Justice Act and its repercussions. One is that the Act has
provided defense lawyers a weapon to fend off capital trials for
their clients in some cases; however a variety of factors—including
tiny populations of racial minorities in many counties,
Commonwealth’s Attorneys’ willingness to accept non-capital
pleas, and defense lawyers’ reluctance to antagonize prosecutors—
have severely limited the use of this weapon. Another conclusion
is that the Act has caused Kentucky prosecutors, at least in large
counties with significant minority populations, to seek the death
penalty in more black-victim cases, increasing the total of capital
prosecutions statewide. A third conclusion is that the Kentucky
Supreme Court, which has yet to consider a case raising a KRJA
claim, has not been moved by the Act’s passage to treat
death penalty. Mary P. Gallagher, “White-Victim Effect” Impels AG to Review
Death Penalty Guidelines, N.J. LAW JOURNAL, July 12, 2004, at 7. The Attorney
General’s office undertook this review and update instead of implementing a
central review system for all capital prosecution decisions, a step which Special
Master Baime urged in his 2004 proportionality review report. Id.
328
See supra note 123, text accompanying note 320.
329
Recent official, statewide statistics are available for New Jersey, but not
Kentucky. See note 344 and text accompanying note 317.
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statistically-based claims of racial discrimination any more
seriously than it did before 1998. Finally, despite these
shortcomings, the KRJA at least serves as an official endorsement
of racial equality in capital proceedings and a reminder that
prosecutorial discrimination—even unconscious discrimination—
can be challenged under a state statute.330
A Kentucky capital defendant faces an extremely difficult
challenge in attempting to prove by clear and convincing evidence
that race was the basis of the decision to seek death in his
particular case. A defendant’s first major obstacle is the fact that
the KRJA outlaws only those death sentences sought “on the basis
of race.”331 A finding that race was the basis of the decision can
only occur if the court finds that “race was a significant factor” in
the decision to seek death.332 These strictures seem impossible to
justify on principle, since it is fundamental to equal protection
doctrine that race is an arbitrary factor that should play no part in
sentencing decisions.333 A constitutionally impermissible factor, if
found to have been considered, should not have to be “significant”
to allow the defendant relief; its mere presence should constitute an
equal protection violation.
Another hurdle is the KRJA’s requirement that the defendant
“state with particularity how the evidence supports a claim that
racial considerations played a significant part in the decision to
seek a death sentence.”334 While the particularity requirement
could signify nothing more than the need to logically connect the
evidence to the claim, it easily lends itself to the prosecution
argument that, for the claim to succeed, a particular
330
See note 340 and accompanying text.
KY. REV. STAT. ANN. § 532.300(1) (Michie 2004) (emphasis added).
Use of the words “the basis” indicates that race must at least be the predominant
basis for seeking death, if not the sole basis, for the KRJA’s protections to
apply.
332
KY. REV. STAT. ANN § 532.300(2) (Michie 2004) (emphasis added).
333
The McCleskey Court itself acknowledged this point: “It would violate
the Equal Protection Clause for a State to base enforcement of its criminal laws
on ‘an unjustifiable standard such as race, religion, or other arbitrary
classification’.” McCleskey, 481 U.S. at 291 n.8 (quoting Oyler v. Boles, 368
U.S. 448, 456 (1962)).
334
KY. REV. STAT. ANN § 532.300(4) (Michie 2004) (emphasis added).
331
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Commonwealth’s Attorney must be shown to have had specific
intent to discriminate against the defendant himself.335 If this
argument were to prevail, then the KRJA would represent
absolutely no improvement over McCleskey.336
Even under Batson v. Kentucky’s relatively defendant-friendly
burden-shifting scheme for challenging racial discrimination in
jury selection,337 defendants’ low success rate indicates just how
difficult claims of prosecutorial discrimination are to win.338 One
public defender’s comment in the KRJA survey—that “formally
raising a Racial Justice Act motion would have dire consequences
on the success of the defense attorney in that individual case and
perhaps scores of other cases while the prosecutor cools down
from being called a racist in the local paper”339—may help explain
why both Batson and the KRJA are troublesome weapons for the
defense. Interpersonal relationships among judges, prosecutors,
and defense lawyers are important, especially in small-town
courthouses. To raise a claim that brands a prosecutor as a racist
could be strategically quite harmful at the trial level, even if the
issue ought to be preserved for appeal.340 The foregoing
335
Specific intent is essentially what the McCleskey Court required: “[T]o
prevail under the Equal Protection Clause, McCleskey must prove that the
decision makers in his case acted with discriminatory purpose.” McCleskey, 481
U.S. at 292.
336
See discussion of McCleskey infra Part I.B.
337
See discussion of Batson, supra note 67.
338
See, e.g., United States v. Clemmons, 892 F.2d 1153, 1159-63 (3d Cir.
1989) (Higginbotham, J., concurring) (citing cases and articles demonstrating
judges’ dereliction in enforcing the constitutional prohibition against racially
based peremptory strikes). See also Susan N. Herman, Why the Court Loves
Batson: Representation-Reinforcement, Colorblindness, and the Jury, 67 TUL.
L.REV. 1807, 1830-31 (1993) (asserting that the level of review Batson imposes
is not as rigorous as strict scrutiny, and that Batson’s race-neutral explanation
requirement allows a prosecutor to hide his or her discrimination behind raceneutral explanations).
339
Neal, supra note 72, at 17-19.
340
An accusation of racism has a unique sting. An ironic byproduct of the
progress against overt racism in American society is that almost no one will
admit to being racist to any degree, whether intentionally or unintentionally,
because racism is now so roundly condemned. See Lawrence, supra note 14, at
321, 322-23 (arguing that the “illness of racism infects almost everyone” and
explaining that “[w]hen an individual experiences conflict between racist ideas
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considerations lead to the conclusion that absent a stark record of
unexplained racial disparities in a given county, it is difficult to
imagine a KRJA challenge leading a trial judge to bar the death
penalty.
It may be, as the anecdotal evidence from Kentucky public
defenders suggests, that the primary use of the Act will be as
leverage in pre-trial negotiations with Commonwealth’s Attorneys.
Still, the amount of leverage the Act provides depends on the
plausibility of a claim of significant racial disparity. A
Commonwealth’s Attorney whose capital case demographics show
racial balance is not likely to feel the pinch; neither is one who
seeks death in every arguably aggravated murder. The KRJA
certainly retains some symbolic value, although different parties
disagree on how much value: a veteran prosecutor sees the Act as a
sort of anti-death penalty fad,341 while its sponsor and some public
defenders trumpet it as an important symbol of an ethos of equality
in Kentucky.342
In New Jersey, the supreme court has shown every sign of
taking proportionality review, particularly systemic proportionality
review for racial discrimination, quite seriously.343 But the court
has yet to declare that the statistics presented to it actually prove
racially disproportionate sentencing, even when supplied with
statistical models that could have provided a defensible basis for
such a conclusion.344 With the state’s capital sentencing rate
slowing, the time for the court to invalidate a death sentence on the
and the societal ethic that condemns those ideas, the mind excludes his racism
from consciousness”).
341
Bouvier interview, supra note 166.
342
Neal, supra note 72, at 15-16.
343
See Bienen, supra note 12, at 147 (noting that “only the New Jersey
Supreme Court has taken an unequivocal position that proportionality review
and the systematic analysis of capital case processing is mandated by the state
constitution.”); State v. Ramseur, 524 A.2d 188, 330 (N.J. 1987) (stating that the
court “must ensure that discriminatory factors are not shifting the balance
between life and death”); State v. Marshall, 613 A.2d 1059, 1112 (N.J. 1992)
(stating that “[w]hether in the exercise of statutory proportionality review or our
constitutional duty to assure the equal protection and due process of law, we
cannot escape the responsibility to review any effects of race in capital
sentencing”).
344
See discussion infra Part III.E.
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grounds of systemic disproportionality may have come and
gone.345 As the court remarked in 2000, “[i]t is ironic indeed that
the result of juror reluctance to impose the death penalty is a
database too small for reliable statistical analysis of race
effects.”346 Looking beyond juror reluctance, however, the
situation may not appear so ironic. Professors David Baldus and
George Woodworth contend that “[a] compelling argument can be
made that [the Proportionality Review Project] has enjoyed a
reasonable measure of success in limiting death sentencing to
highly aggravated cases.”347 Because highly aggravated cases show
no appreciable racial discrimination in charging or sentencing,348
the Proportionality Review Project could be said to have achieved
the goal of eradicating discrimination in a roundabout way.
Finally, like the Kentucky Racial Justice Act, the New Jersey
Supreme Court’s proportionality review project carries symbolic
weight. The court’s many references to New Jersey’s nondiscriminatory values, beginning with the repudiation of
McCleskey in Marshall, bespeak an awareness of symbolism.349
For some actors in the criminal justice system, proportionality
review symbolizes obstructionism, but for others, it symbolizes a
principled commitment to fairness.350
It is interesting to note that both New Jersey’s and Kentucky’s
actions appear to have affected prosecutors’ charging decisions—
although in opposite directions. In the wake of the KRJA’s
passage, Kentucky prosecutors have increased their death notices
in black-victim cases, perhaps in order to neutralize charges of
race-of-victim discrimination.351 In New Jersey, meanwhile,
345
Baime’s proportionality reports are now annual, and subsequent reports
have confirmed his 2001 conclusion that New Jersey’s death penalty system is
not infected by racial prejudice, although defendants accused of killing whites
are more likely to proceed to a capital trial that those who kill blacks. Action in
Trenton, THE STAR-LEDGER (Newark, N.J.), May 28, 2004, at 41.
346
In re Proportionality Review Project (II), 757 A.2d 168, 176 (N.J.
2000).
347
Baldus & Woodworth, supra note 12, at 1463.
348
See discussion infra Part III.C.
349
See discussion infra Part III.C.
350
See Bienen, supra note 12, at 207-9.
351
See supra text accompanying notes 116, 161, 170.
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prosecutors have retreated somewhat from seeking the death
penalty, perhaps realizing that any death sentence they attain will
be painstakingly and exhaustively reviewed by the state’s high
court, whatever the defendant’s race.352
B. Comparing the Legislative and Judicial Responses
Comparison of the Kentucky legislation and the New Jersey
jurisprudence presents obvious challenges, particularly the
impossibility of holding constant the differences in history,
demographics, and penal laws between the two states. Yet certain
fruitful comparisons can be made.
First, is instructive to note that Kentucky’s provision seeks to
counteract, or even prevent, racial discrimination at the front end
of the trial process, while New Jersey’s seeks to remedy racial
discrimination, if found, after the trial process has run its course.
The implication is clear: in the Kentucky scheme, the
Commonwealth’s Attorney is implicated as the crucial actor in
producing racial disparity, whereas in the New Jersey project both
the jury and the district attorney are implicated as possible sources
of such disparity. It is also significant that Kentucky’s response to
the specter of racial discrimination came from the elected
representatives of its citizens, while New Jersey’s came from
appointed members of its judiciary.353 This difference raises the
352
See, e.g., Jim O’Neil, Death Row Inmate Gets Life in Waitress’s ‘93
Slaying, THE STAR-LEDGER (Newark, N.J.), June 11, 2004, at 35 (reporting that
Middlesex County prosecutors would not seek death for John Chew, a white
man whose original death sentence was vacated by the New Jersey Supreme
Court, and quoting the assistant prosecutor as saying, “[c]apital prosecutions
require a huge investment in time, money and resources and it has become
obvious to me that the New Jersey Supreme Court will not allow a death
sentence to be imposed upon John Chew”). Adding a new hurdle for
prosecutors, in February 2004 the New Jersey Supreme Court held in State v.
Fortin, 843 A.2d 974 (N.J. 2004), that prosecutors planning to seek the death
penalty must first present evidence tending to prove a statutory aggravating
factor to a grand jury as part of the indictment practice. 843 A.2d at 1027-28.
353
Supreme Court Justices are appointed by the Governor and confirmed
by the State Senate for initial terms of seven years. NEW JERSEY JUDICIARY,
SUPREME COURT OF NEW Jersey, at http://www.judiciary.state.nj.us/supreme/
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issue of relative institutional competence: are legislatures or courts
better able to address the problem of racial disparity in capital
proceedings and the racial discrimination (conscious or
unconscious) that presumably underlies it?
At first blush the answer might seem to depend on whether we
conceive of discrimination in capital punishment as a political
issue or a legal one. But disentangling political issues, appropriate
for the legislative and executive branches, from legal issues,
appropriate for the judicial branch, is not easy. As Alexis de
Tocqueville famously observed more than 150 years ago,
“[s]carcely any political question arises in the United States that is
not resolved, sooner or later, into a judicial question.”354 Still, one
clarification is helpful: the central issue presented by disparities in
the death penalty is not crime control, for neither the desirability
nor the constitutionality of the death penalty per se are necessarily
at stake. Rather, the central issue is the protection of rights, namely
the right to be free of cruel and unusual punishments and the right
to the equal protection of the laws. Thus the question becomes, is a
particular branch of government best suited to protect these rights?
A useful way of approaching this question is presented by
political scholar John J. Dinan.355 He identifies three regimes of
rights protection in U.S. history, each arising from the sociopolitical and economic developments of its time, and each
achieving some degree of success under certain circumstances.356
Dinan calls the first regime republicanism, which arose in the late
eighteenth and early nineteenth centuries, and which understood
representative assemblies to be the most capable of securing
rights.357 He asserts that on the whole these assemblies achieved a
commendable level of rights protection but fell short when the
rights at issue conflicted with representatives’ self-interest or when
representatives got caught up in the “momentary passions” of the
(last visited Jan. 17, 2005). On reappointment, they are granted tenure until they
reach the mandatory retirement judicial retirement age of 70. Id.
354
Quoted in LAURA LANGER, JUDICIAL REVIEW IN STATE SUPREME
COURTS: A COMPARATIVE STUDY, 1 (2002).
355
JOHN J. DINAN, KEEPING THE PEOPLE’S LIBERTIES: LEGISLATORS,
CITIZENS, AND JUDGES AS GUARDIANS OF RIGHTS (1998).
356
Id. at 167.
357
Id. at 168.
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day.358 The second regime was populism, which emerged at the
beginning of the twentieth century, and which maintained that
rights were best protected through direct democratic institutions,
such as state constitutional conventions.359 The third was
judicialism, which arose in the middle of the twentieth century, and
which presumed that judges were best qualified to protect the
people’s rights.360
Dinan contends that judicialist institutions have performed
better than representative institutions in securing rights during
periods of social and political ferment, when they have been better
insulated from transitory passions.361 He also points out that none
of these regimes have been totally dominant; non-dominant
institutions have continued to act on rights issues throughout each
regime, with varying degrees of assertiveness.362
The present period is one of judicialist regime dominance.363 In
the past few decades the United States has experienced a
renaissance of state supreme courts’ power and influence.364 Given
these conditions, it is not surprising that the New Jersey Supreme
Court arrogated to itself the responsibility for rights protection in
capital proceedings. After all, the U.S. Supreme Court, in Gregg,
gave its imprimatur to state supreme court proportionality review
(although it later decided such review is not constitutionally
required).365 To apply Dinan’s conception, capital crimes
presumably arouse such popular passions that representative
assemblies cannot be trusted to protect defendants’ rights as
effectively as judicial institutions. This presumption appears to
underlie the Furman decision, the U.S. Supreme Court’s entry into
358
Id. at 169.
Id. at 168.
360
Id.
361
Id. at 169.
362
Id. at 167-71.
363
Id. at 168.
364
See LANGER, supra note 354, at 2. See also William J. Brennan, The Bill
of Rights and the States: The Revival of State Constitutions as Guardians of
Individual Rights, 61 N.Y.U. L.REV. 535, 548-50 (1986).
365
See discussion of Gregg supra Part I.A. and Pulley supra Part III.A.
359
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death penalty regulation.366
New Jersey’s experience with proportionality review highlights
another factor affecting judicial action, not just in rights protection,
but in every area of the law: social consensus. Courts function
within a system of checks and balances, and, as institutions, they
have always been responsive to majoritarian interests.367 One way
of understanding the Proportionality Review Project—which the
New Jersey Supreme Court created on its own initiative, poured
significant resources into, struggled with, and eventually
downsized without finding a single death sentence
disproportionate—is as a manifestation of the conflict between the
court’s belief in judicialism and its sensitivity to popular
concerns.368
The Kentucky Racial Justice Act, on the other hand, represents
a rare effort by an institution of a non-dominant regime to protect
the rights of a marginal, even despised, group—defendants accused
of aggravated murder. The Act’s backers were able to achieve
what had not been achieved in the U.S. Congress or in any other
state. The KRJA’s passage is all the more extraordinary in light of
Kentucky’s history of racial discrimination and racial violence, and
the continuing popular approval of the death penalty there and
across the country.369 Yet the KRJA’s very terms, as we have seen,
366
The Furman Court effectively invalidated the work of forty state
legislatures and commuted the sentences of 629 men on death row when it ruled
that no death sentences could be carried out under existing capital punishment
statutes. DEATH PENALTY INFORMATION CENTER, HISTORY OF THE DEATH
PENALTY,
PART
I,
at
http://www.deathpenaltyinfo.org/article.php
?scid=15&did=410#ConstitutionalityoftheDeathPenaltyinAmerica (last visited
Jan. 15, 2005).
367
See DONALD E. LIVELY, JUDICIAL REVIEW AND THE CONSENT OF THE
GOVERNED: ACTIVIST WAYS AND POPULAR ENDS 125 (1990).
368
See Baldus & Woodworth, supra note 12, at 1461 (observing that
“[a]lthough the New Jersey court is highly respected, it has been criticized for its
high standards in the review of death cases” and “[i]n response, the court
adopted conservative substantive standards to guide its reviews”).
369
In a 1999 University of Louisville poll, 59.2 percent of Kentucky
respondents supported the death penalty. In a 2002 University of Kentucky poll,
32 percent of Kentuckians opposed legislation to raise the age of deatheligibility from 16 to 18. DEATH PENALTY INFORMATION CENTER, SUMMARIES
OF
RECENT
POLL
FINDINGS,
at
http://www.deathpenaltyinfo.org/
article.php?scid=23&did=210#Kentucky (last visited Jan. 28, 2005).
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resign it to extremely limited practical effect.370 The Act was
crafted to address the problem laid bare in McCleskey by providing
Kentucky’s capital defendants with a weapon for challenging the
decision to seek death penalty in their cases. But in order to get the
Act through the legislature, its backers, probably mindful of the
federal Racial Justice Act’s demise, created a weapon that is
difficult to wield.371
In the course of the legislative process, KRJA supporters also
antagonized prosecutors, some of the executive branch’s most
visible and powerful members, by implying that prosecutorial
discretion is sometimes tainted by racism.372 As noted above, the
desire of prosecutors, defense attorneys and judges alike to get
along and “save face” plays a major role in what defense claims
are raised and how they are adjudicated.373 In light of this
interpersonal dynamic—and considering that Kentucky is
composed mostly of rural counties with very little racial
diversity—it is not surprising that use of the KRJA has been
sparing.374 Thus the KRJA, although a symbolic victory for rights
protection, has been of limited use both to defendants and to those
who would look to Kentucky as a laboratory for legislativelyenacted tools for ensuring racial equality in capital proceedings.
C. A Proposal for Adjudicating Claims of Racial
Discrimination in Capital Proceedings
In the eighteen years since McCleskey was handed down,
370
See supra text accompanying notes 331-36.
In fact, Sen. Gerald Neal’s intention in sponsoring the KRJA may have
been simply to hold prosecutors to a higher standard, not give defense lawyers a
usable litigation weapon, as his comments shortly after the Act’s passage
suggest: “I would be amazed if anyone successfully avoids the death penalty
under this legislation [. . .] prosecutors are going to be so careful as they decide
whether to seek death, that they’ll build such a tight case for it, that no judge
will rule against them.” John Cheves, If Death Penalty Has Taint of Race, Can
Law Remove It?, THE LEXINGTON HERALD-LEADER, Feb. 15, 1998, at A1.
372
See discussion infra Part II.C.
373
See id.
374
See Patton interview, supra note 166 (noting that most Kentucky
counties have almost entirely White residents); KENTUCKY QUICKFACTS, supra
note 71.
371
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scholars have produced a sea of articles and books about the
decision, the vast majority finding significant fault with the Court’s
opinion.375 Among the many scholarly proposals for dealing with
the challenge the McCleskey Court avoided—that of crafting a
framework for deciding whether claims that racial disparities in
capital proceedings represent constitutional violations in individual
cases—perhaps the most straightforward and powerful proposal is
simply to treat these claims like equal protection claims in other
areas of the law.376
Under established Supreme Court equal protection doctrine, a
party claiming discrimination must show racially discriminatory
intent or purpose behind the decision at issue to make out a
violation of the Equal Protection Clause377 But that party need not
prove discriminatory intent by direct evidence.378 Rather, as the
Court stated in Village of Arlington Heights v. Metropolitan
Division Corporation, “invidious discriminatory purpose may
often be inferred from the totality of the relevant facts.”379 Judicial
375
See, e.g., Bynam, supra note 22; Sheri Lynn Johnson, Unconscious
Racism and the Criminal Law, 73 CORNELL L. REV. 1016 (1988); SAMUEL R.
GROSS & ROBERT MAURO, DEATH AND DISCRIMINATION: RACIAL DISPARITIES
IN CAPITAL SENTENCING 159-211 (1989); Bryan A. Stevenson & Ruth E.
Friedman, Deliberate Indifference: Judicial Tolerance of Racial Bias in
Criminal Justice, 51 WASH. & LEE L.REV. 509, 510 (1994); Bright, supra note
19, at 480. Even Justice Powell, the author of the McCleskey opinion, came to
wish that he could change his vote in the case. David Von Drehle, Retired
Justice Changes Stand on Death Penalty, WASH. POST, June 10, 1994, at A1.
376
See, e.g., Blume et al., supra note 18, at 1778-80 (noting that
“McCleskey purports to be rooted in and consistent with standard equal
protection analysis” and asserting that “no reason exists to believe that
prosecutorial decisions to seek the death penalty are exempt from the dictates of
the Equal Protection Clause”).
377
See Washington v. Davis, 426 U.S. 229, 241 (1976).
378
See, e.g., Village of Arlington Heights v. Metro. Housing Dev. Corp.,
429 U.S. 252, 265 (1977). In Arlington Heights, a real estate developer that had
purchased land to build racially-integrated low-income housing sued after local
authorities refused to rezone the land from single-family to multi-family. Id. at
254. The developer claimed that the village’s action was racially discriminatory
and violated the Equal Protection Clause of the Fourteenth Amendment. Id.
379
Id. at 266; see also Washington v. Davis, 426 U.S. at 242 (stating that
“an invidious discriminatory purpose may often be inferred from the totality of
the relevant facts, including the fact, if it is true, that the law bears more heavily
upon one race than another”).
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analysis therefore “demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available.”380
Thus if courts take equal protection doctrine seriously in the
criminal context, they should apply an equivalent burden-shifting
scheme to claims of racial discrimination in capital proceedings.381
For example, if a capital defendant can show by rigorous statistical
analysis that the district attorney who prosecuted him has a racially
disparate record of seeking death, the court should recognize that
the defendant has fulfilled the first two Arlington Heights factors,
showing “the impact of the official action” and “[t]he historical
background of the decision.”382 If the defendant can show that the
district attorney assigned more staff members to, devoted more
funds to, or otherwise prioritized the prosecution of a white-victim
or black-defendant case, the court should recognize that the
defendant has shown “[d]epartures from the normal procedural
380
Arlington Heights, 429 U.S. at 266. The Arlington Heights Court listed
several factors to consider in testing for discriminatory intent: “the impact of the
official action,” “[t]he historical background of the decision . . . particularly if it
reveals a series of official actions taken for invidious purposes,” “[d]epartures
from the normal procedural sequence,” “substantive departures . . . particularly
if the factors usually considered important by the decision maker strongly favor
a decision contrary to the one reached,” and “contemporary statements by
members of the decision-making body.” Id. at 267-68. The Court made clear
that this list is not exhaustive. Id. at 268. If factors such as these are convincing,
a court may find that the party claiming discrimination has made out a prima
facie case of discriminatory intent. See Washington v. Davis, 426 U.S. at 241;
Alexander v. Louisiana, 405 U.S. 625, 632 (1972). The burden then shifts to the
other party to rebut the presumption of unconstitutional action by showing that
race-neutral criteria or procedures produced the racially disparate effect.
Washington v. Davis, 426 U.S. at 241. Burden-shifting schemes make a great
deal of sense in the context of racial discrimination claims, since discriminatory
actors can always be expected to deny invidious intent (whether or not they are
even conscious of having such intent). See Evan Tsen Lee & Ashutosh Bhagwat,
The McCleskey Puzzle: Remedying Prosecutorial Discrimination Against Black
Victims in Capital Sentencing, 1998 SUP. CT. REV. 145, 154 (1998) (citing
Charles Lawrence’s thesis that decision-making influenced by racial factors
often occurs unconsciously and arguing that “the government actor’s conscious
mental state should be irrelevant to the constitutional analysis”).
381
See Blume et al., supra note 18, at 1778-80.
382
See Arlington Heights, supra notes 378, 380.
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sequence.”383 Finally, if the defendant can show that the district
attorney decided to seek death in white-victim or black-defendant
cases while eschewing capital charges in black-victim or whitedefendant cases with essentially the same aggravating and
mitigating factors, the court should recognize that the defendant
has shown “substantive departures.”384
These factors, taken together, should establish a prima facie
case, which the prosecution should be required to rebut with
evidence that conclusively demonstrates race-neutral factors and
explanations for the racially disparate effects the defendant
showed. Failure to rebut the prima facie case should result in a
finding of racial discrimination in violation of the Equal Protection
Clause of the Fourteenth Amendment.385
This proposal focuses on the district attorney (or the
Commonwealth’s Attorney, as the case may be) for two important
reasons. First, unlike jurors, district attorneys are repeat actors in
the system, so their decisions can be tracked over time. Second, a
showing of what the particular district attorney in a defendant’s
county has done over time has substantially more probative force
than a statewide showing, as in McCleskey.386 Finally, it should be
noted that this proposal would not restrict relief to those defendants
who could show racial discrimination in their own cases. If, in a
given case, a court finds that race has operated as a factor in capital
proceedings in that county, then the system that the defendant
faces operates unconstitutionally, and the defendant should not
383
See id.
See id.
385
This proposal essentially tracks the burden-shifting scheme the Court
has applied in the contexts mentioned infra Part I.C: grand jury venires,
peremptory strikes of jurors, voting rights, and employment. See supra note 67.
Even in the McCleskey opinion, the Court cited with approval Bazemore v.
Friday, 478 U.S. 385 (1986) for the proposition that it “has accepted statistics in
the form of multiple-regression analysis to prove statutory violations under Title
VII of the Civil Rights Act of 1964.” Id. at 400-1. Justice Blackmun, in his
McCleskey dissent, advocated a similar burden-shifting scheme. 481 U.S. at
351-61. In its broad outlines, the proposal sketched out above also differs little
from the Kentucky Racial Justice Act. But the KRJA, while establishing a
burden-shifting scheme and allowing statistical proof, is hamstrung by highly
restrictive language, as discussed infra Part IV.A.
386
See Blume et al., supra note 18, at 1794.
384
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have to prove that the decisions in his own case were
discriminatory.387
CONCLUSION
The Kentucky Racial Justice Act and the New Jersey Supreme
Court’s Proportionality Review Project came about essentially as
experiments in addressing conditions some perceived to be unjust.
In neither state was there broad agreement that racial disparity in
capital proceedings was a significant problem that required
remediation. Yet in each state, key government decision makers,
unlike their counterparts in the vast majority of death penalty
states, responded to racial disparity with official action. These
official responses were shaped by the unique legal-political
cultures of the two states, but both were motivated to some degree
by the desire to conform state practice to the ideal inscribed on
many American courthouses: Equal Justice Under Law. These
official responses have also been curtailed by the same legalpolitical cultures, in which a significant portion of voters and
politicians support the death penalty for the perpetrators of the
most heinous crimes.388
387
The foregoing proposal does not necessarily preclude state supreme
court proportionality review. Indeed, state supreme courts could still undertake
rigorous systemic proportionality reviews, in the spirit of New Jersey’s
proportionality review project. Courts could vacate any death sentence that
contributes to a clear, disproportionate statewide pattern unexplained by
nonracial factors, as the federal Racial Justice Act would have provided. Racial
Justice Act, H.R. 4017, 103d Cong. § 2921(d)-(e) (1994). This review could
serve as a second safeguard, monitoring the capital punishment system with a
statewide perspective difficult to attain at the county level. The difficulties of
such review, however, have been made manifest by the New Jersey experience.
Conducting a truly rigorous review is expensive; it slows down the appellate
process significantly; it annoys and alienates death penalty supporters in the
executive and legislative branches; and it does not guarantee that any clear
conclusions will emerge, which risks undermining public confidence in the
court’s decision to undertake the project in the first place. If a burden-shifting
scheme were put in place and conscientiously applied, both to pre-trial motions
and claims on appeal, statewide systemic proportionality review should not be
necessary.
388
See supra note 369. DEATH PENALTY INFORMATION CENTER,
SUMMARIES OF RECENT POLL FINDINGS, at http://www.deathpenaltyinfo.org/
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The death penalty functions as a powerful symbol in American
public life.389 It simplifies complex social issues, unites many
people in the belief that something is being done about an
important problem, and reassures anxious communities.390 More
disturbingly, among white Americans, support for the death
penalty strongly correlates with anti-black prejudice.391 Of course
this does not mean that all whites who support the death penalty
consciously do so because of racial animus. But the nation’s
painful experience with slavery, state sanctioned racial bias,
racially motivated violence, and extrajudicial executions makes the
link between anti-black prejudice and death penalty support—at
least on an unconscious level—difficult to dismiss. Given this
context, any state institutional response to the specter of racial
discrimination in capital proceedings, whether legislative, judicial,
executive, or a combination of the three, must be made with the
understanding that it is only one limited step down a long and
arduous road. A decent respect for reality requires us to
article.php?scid=23&did=210#NewJersey (last visited January 28, 2005)
(showing death penalty support in New Jersey at 63 percent in 1999).
389
David Baldus, When Symbols Clash: Reflections on the Future of the
Comparative Proportionality Review of Death Sentences, 26 SETON HALL L.
REV. 1582 (1996).
390
Id.
391
See Barkan & Cohn, supra note 16, at 205-6 (finding that White support
for the death penalty was associated with antipathy to Blacks and with racial
stereotyping), Soss et al. supra note 16, at 414 (finding that racial prejudice had
the largest influence of any factor in the analysis). The 1994 study by Barkan &
Cohn was based on data in the 1990 General Social Survey, a random sample of
the U.S. adult population conducted almost annually since 1972. Barkan &
Cohn, supra note 16, at 203. Barkan & Cohn’s anti-black prejudice variable was
constructed by selecting several survey questions the researchers thought
indicative of prejudice, such as the degree to which respondents favored or
opposed “living in a neighborhood where half your neighbors were Blacks” and
“having a close relative or family member marry a Black person.” Id. The 2003
study by Soss et al. was based on data from the 1992 American National
Election Study. In addition, there are many measures of racially differential
beliefs about the death penalty; for example, in a recent poll, 58 percent of
African-Americans, but only 35 percent of white Americans, agreed that the
death penalty “is applied . . . unfairly in this country today.” UNITED STATES
DEP’T. OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2004, Table
2.52, Attitudes Toward Fairness of the Application of the Death Penalty,
available at http://www.albany.edu/sourcebook/pdf/t252.pdf.
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acknowledge that significant progress against racial disparity in the
imposition of the death penalty will be achieved only after a candid
public assessment of the death penalty as public policy, as well as
a concerted effort against the “illness of racism”392 in American
society as a whole.
392
Lawrence, supra note 14, at 321.